SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF ONONDAGA---------------------------------------------------------------XSCOTT McCONNELL, :

:Plaintiff, :

:- against- :

:LE MOYNE COLLEGE, JOHN SMARELLI, JR., :individually and in his official capacity as Provost :of Le Moyne College, CATHY JO LEOGRANDE, :individually and in her official capacity as Chair :of the Le Moyne College Education Department, :and MARK J. TRABUCCO, individually and :in his official capacity as a Professor of Education :at Le Moyne College, and “John Does” 1 through :10 being those unknown members of the Le Moyne :College faculty and/or administration involved in :the illegal conduct alleged herein, :

:Defendants :

---------------------------------------------------------------X

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’SMOTION FOR A PRELIMINARY INJUNCTION

IMMEDIATELY REINSTATING HIM AS A GRADUATESTUDENT AT LE MOYNE COLLEGE

Law Offices of Samuel A. Abady and Associates, P.C. Lead Counsel for Scott McConnell216 East 49th Street - 5th FloorNew York, New York 10017(212) 339-8600

- and -

Michael E. Rosman

Center for Individual Rights Co-Counsel for Scott McConnell1233 20th Street, N.W. – Suite 300Washington, DC 20036(202) 833-8400

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TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

POINT I

DEFENDANTS’ EXPULSION OF PLAINTIFF WAS ARBITRARY ANDCAPRICIOUS, ENTITLING HIM TO IMMEDIATE REINSTATEMENT AS AGRADUATE STUDENT AT LE MOYNE COLLEGE . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. Preliminary Injunction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

B. Defendants’ Action in Expelling Mr. McConnell Without AnyDue Process Under the State Mandated Conduct Code WasArbitrary and Capricious as a Matter of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

C. Due Process is Not Only Mandated by New York Law, It is aVital Component of Academic Freedom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

D. The Issues at Stake in This Case Are Far Reaching BecauseAcademic Freedom, Including Academic Due Process, is Essentialto American Democracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

E. Academic Due Process is a Value of Constitutional Dimension . . . . . . . . . . 12

F. Irreparable Injury and Balance of Equities . . . . . . . . . . . . . . . . . . . . . . . . . . 16

POINT II

THE COURT CAN GRANT PLAINTIFF ARTICLE 78 RELIEF IN THISHYBRID PROCEEDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

A. Combining Civil Rights Claims and Article 78 Relief in ThisHybrid Action is Perfectly Proper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

B. The Court Should Grant Plaintiff’s Article 78 Relief at ThisTime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

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TABLE OF AUTHORITIES

FEDERAL CASES

Abrams v. United States, 250 U.S. 616, 630 (1919) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -10-

Antonsen v. Ward, 943 F.2d 198, 204 (2d Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -22-

Board of Curators of the University of Missouri v. Horowitz, 435 U.S. 78, 86 (1978) . -13-, -17-

Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172, 1177, 1179 (3d Cir. 1990) . . . . . . . . . . . -14-

Cloud v. Trustees of Boston Univ., 720 F.2d 721, 725 (1st Cir. 1983) . . . . . . . . . . . . . . . . . . . -5-

Cohen v. San Bernardino Valley College, 92 F.3d 968, 970, 972 (9th Cir. 1996) . . . . . . . . . -14-

Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961) . . . . . . -13-, -18-, -26-

Doe v. University of Michigan, 721 F. Supp. 852, 867 (E.D. Mich. 1989) . . . . . . . . . . . . . . . -14-

Fellheimer v. Middlebury Coll., 869 F. Supp. 238, 244 (D. Vt. 1994) . . . . . . . . . . . . . . . . . . . -4-

Goss v. Lopez, 419 U.S. 565, 579-80 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -13-

Greenhill v. Bailey, 519 F.2d 5, 8 (6th Cir. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -19-

Herman v. University of South Carolina, 457 F.2d 902, 903 (4th Cir. 1972) . . . . . . . . . . . . . -20-

Keyishian v. Board of Regents of University of State of New York, 385 U.S. 589, 603-604,(1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -10-, -14-,

-20-

Lacks v. Ferguson Reorganized School Dist., 936 F. Supp. 676, 685 (E.D. Mo. 1996) . . . . . -15-

McNabb v. United States, 318 U.S. 332, 347 (1943) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-

Mitchell v. Fishbein, 377 F.3d 157 (2d Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -22-

Papish v. Bd. of Curators of the University of Missouri, 410 U.S. 667, 670 (1973) . . . . . . . . -15-

Silva v. University of New Hampshire, 888 F. Supp. 293, 312-13 (D.N.H. 1994) . . . . . . . . . -15-

Ward v. Hickey, 996 F.2d 448, 452-53 (1st Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -15-

-iii-

Waters v. Churchill, 511 U.S. 661, 671-72 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -15-

Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -17-

STATE CASES

Abrishami v. Board of Trustees of Inc. Village of East Hills, 16 A.D.3d 410, 790 N.Y.S.2d 401,402 (2d Dept., 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -24-

Adams v. Welch, 272 A.D.2d 642, 707 N.Y.S.2d 691 (3d Dept., 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -23-

Aetna Ins. Co. v. Capasso, 75 N.Y.2d 860, 862, 552 N.Y.S.2d 918, 552 N.E.2d 166 (1990) . -2-

Ahlum v. Adm'rs of the Tulane Educ. Fund, 617 So. 2d 96, 98-99 (La. Ct. App. 1993) . . . . . -4-

Altona Citizens Committee, Inc. v. Town of Altona, 77 A.D.2d 954, 430 N.Y.S.2d 894, 896 (3dDept., 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -25-

Anderson v. Mass. Inst. of Tech., 1995 WL 813188 1, 4-5 (Mass. Super. 1995) . . . . . . . . . . . -4-

Auguste v. Hammons, 285 A.D.2d 417, *417, 727 N.Y.S.2d 880 (1st Dept.,. 2001) . . . . . . . -24-

Beers v. Incorporated Village of Floral Park, 262 A.D.2d 315, 315, 691 N.Y.S.2d 546, 547 (2dDept., 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -23-

Bennett v. Wells College, 932, 219 A.D.2d 352, 357, 641 N.Y.S.2d 929 (4th Dept., 1996) -4-, -23-

Bottalico v Adelphi University, 299 A.D.2d 443, 749 N.Y.S.2d 734, 735 (2d Dept. 2002) . . . -7-

Bridgeview Garden Apartments LLC v. New York State Div. of Housing and CommunityRenewal, 2004 WL 2059552, 5, 2004 N.Y. Slip Op. 51001(U) (Richmond Cnty., 2004) -23-, -25-

Buffalo, 726 N.Y.S.2d 202 (4th Dept., 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -7-

Cappelli v. Sweeney, 167 Misc.2d 220, *222, 634 N.Y.S.2d 619 (N.Y. Cnty., 1995) . . . . . . -24-

City of Syracuse v. Comerford, 13 A.D.3d 1109, 787 N.Y.S.2d 788 (4th Dept., 2004) . . . . . -23-

City of Syracuse v. Comerford, 2003 WL 22471176, 1 (Onondaga Cnty., 2003) . . . . . . . . . . -25-

Concerned Citizens of Perinton, Inc. v. Town of Perinton, 261 A.D.2d 880, 689 N.Y.S.2d 812 (4th Dept., 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -23-

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Cornell University v. Bagnardi, 107 A.D.2d 398, 403, 486 N.Y.S.2d 964, 968 (3d Dept., 1985)-24-

Coveney v. Pres. of Coll. of the Holy Cross, 445 N.E.2d 136, 138 (Mass. 1983) . . . . . . . . . . . -4-

Doe v. Axelrod, 73 N.Y.2d 748, 536 N.Y.S.2d 44, 532 N.E.2d 1272 (1988) . . . . . . . . . . . . . . -2-

EMP of Cadillac, LLC v. Assessor of Village of Spring Valley, 789 N.Y.S.2d 522, 524 (2dDept., 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -24-

Gambar Enterprises v Kelly Services, 69 A.D.2d 297, 418 N.Y.S.2d 818 (4th Dept., 1979) . . -2-

Gray v. Canisius College of Buffalo, 76 A.D.2d 30, 33-34, 430 N.Y.S.2d 163, 166-67 (4th Dept.,1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -3-, -5-

Grogen v. St. Bonaventure University, 91 A.D.2d 855, 458 N.Y.S.2d 410 (4th Dept., 1982) . . -4-

Harwood v. Johns Hopkins Univ., 747 A.2d 205, 209 (Md. Ct. Spec. App. 2000) . . . . . . . . . -4-

Heimbach v. Mills, 54 A.D.2d 982, 982-83, 389 N.Y.S.2d 24, 26 (2d Dept., 1976) . . . . . . . -23-

Held v. Hall, 190 Misc.2d 444, 453, 737 N.Y.S.2d 829, 835-36 (West. Cnty., 2002) . . . . . . -24-

Jansen Court Homeowners Ass'n v. City of New York, 2005 WL 901952, 1 (2d Dept., 2005) -24-

Jenkins v. State Div. of Housing and Community Renewal, 264 A.D.2d 681, 695 N.Y.S.2d 563(1st Dept., 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -23-

Johnson v. Blum, 1983, 58 N.Y.2d 454, 457, 461 N.Y.S.2d 782, 783, 448 N.E.2d 449, 450(1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -22-

Karedes v. Colella, 187 Misc.2d 656, 662, 722 N.Y.S.2d 714, 718 (West. Cnty., 2001) . . . . -25-

Korn v. Gulotta, 186 A.D.2d 195, 196, 587 N.Y.S.2d 960, 961 (2d Dept., 1992) . . . . . . . . . -24-

Kwiatkowski v. Ithaca College, 82 Misc.2d 43, 45-46, 368 N.Y.S.2d 973, 977 (Tompkins Cnty.,1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-

Mary M v. Clark, 118 Misc.2d 98, 460 N.Y.S.2d 424 (Cortland Cnty., 1983) . . . . . . . . . . . . -17-

Matter of Friedman v. Cuomo, 39 N.Y.2d 81, 382 N.Y.S.2d 961, 346 N.E.2d 799 . . . . . . . . -25-

Merchants Road, Inc. v. Leach, 92 A.D.2d 719, 461 N.Y.S.2d 111, (4th Dept., 1983) . . . . . . -23-

Miller v. DeBuono, 235 A.D.2d 480, 652 N.Y.S.2d 313, (2d Dept., 1997) . . . . . . . . . . . . . . -24-

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Murphy v. Capone, 1993, 191 A.D.2d 683, 595 N.Y.S.2d 526 (2d Dept., 1993) . . . . . . . . . . -22-

Otto v. New York State Adirondack Park Agency, 252 A.D.2d 898, 676 N.Y.S.2d 330 (3d Dept.,1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -23-

Parker v. Blauvelt Volunteer Fire Company, 1999, 93 N.Y.2d 343, 690 N.Y.S.2d 478, 712N.E.2d 647 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -21-, -22-

Perry Thompson Third Co. v. City of New York, 279 A.D.2d 108, 718 N.Y.S.2d 306 (1st Dept.,2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -23-

Pokoik v. Department of Health Services, County of Suffolk, 237 A.D.2d 368, 657 N.Y.S.2d 56 (2d Dept., 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -24-

Psi Upsilon of Phila. v. Univ. of Pa., 591 A.2d 755, 758 (Pa. Super. Ct. 1991) . . . . . . . . . . . . -5-

Ratigan v. Daemen College, 273 A.D.2d 891, 710 N.Y.S.2d 267 (4th Dept., 2000) . . . . . . . . . -7-

Robinson v. Perales, 166 A.D.2d 594, 560 N.Y.S.2d 881 (2d Dept., 1990) . . . . . . . . . . . . . . -24-

Ryan v. Hofstra University, 67 Misc.2d 651, 662, 324 N.Y.S.2d 964, 976 (Nass. Cnty., 1971)-17-

Sabin v. State University of New York Maritime College, 92 A.D.2d 831, 460 N.Y.S.2d 332 (1st Dept., 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -7-

Schaer v. Brandeis Univ., 716 N.E.2d 1055, 1059 (Mass. App. Ct. 1999) . . . . . . . . . . . . . . . -19-

Schaer v. Brandeis Univ., 735 N.E.2d 373, 380 (Mass. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . -4-

Seawall Assoc . v. City of New York, 134 Misc.2d 187, 510 N.Y.S.2d 435(N.Y.Cnty. 1986) -18-

Susan M. v. New York Law School, 76 N.Y.2d 241, 246, 556 N.E.2d 1104, 1107, 557 N.Y.S.2d297, 300 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-

Sylmark Holdings Ltd. v. Silicone Zone Intern. Ltd., 5 Misc.3d 285, 295, 783 N.Y.S.2d 758, 769(N.Y. Cnty., 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -3-

Tedeschi v. Wagner College, 49 N.Y.2d 652, 661, 404 N.E.2d 1302, 1307, 427 N.Y.S.2d 760,765 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -3--6-

Tyson v. New York State Dept. of Correctional Services, 198 A.D.2d 408, 604 N.Y.S.2d 130,(2d Dept., 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -24-

Village of Scarsdale v. Jorling, 229 A.D.2d 101, 653 N.Y.S.2d 935 (2d Dept.,1997) . . . . . . -23-

-vi-

W.T. Grant Co. v. Srogi, 52 N.Y.2d 496, 517, 438 N.Y.S.2d 761, 420 N.E.2d 953 (1981) . . . -2-

West 90S/West 100S Neighborhood Coalition, Inc. v. Surles. 205 A.D.2d 461, 613 N.Y.S.2d 908(1st Dept., 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -23-

FEDERAL STATUTES

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -21, -22-, -24-

42 U.S.C. § 1988 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -22-

STATE STATUTES

Cal. Ed. Code § 94367(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -18-

CPLR 103(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -24-,-25-, -26-

CPLR 217(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -22-

CPLR 6301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-

CPLR 6312(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -3-

CPLR 7803(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -7-, -17-, -24-

CPLR 7801 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -21-

CPLR 7806 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -21-

OTHER AUTHORITIES

Thomas R. Baker, Cross-Examination of Witnesses in College Student Disciplinary Hearings: ANew York Case Rekindles an Old Controversy, 142 Educ. L. Reptr. 11, 22-23 (2000) . . . . . -12-

Hazel Glenn Beh, Student Versus University: The University's Implied Obligation of Good Faithand Fair Dealing, 59 Md. L. Rev. 183 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-

Curtis J. Berger & Vivian Berger, Academic Discipline: A Guide to Fair Process for theUniversity Student, 99 Colum. L. Rev. 2899 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -3-, -12-

Mark S. Blaskey, University Students' Right to Retain Counsel for Disciplinary Proceedings, 24Cal. W.L. Rev. 65 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-

-vii-

J. Peter Byrne, Academic Freedom: A Special Concern of the First Amendment, 99 Yale L.J.251, 300 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -11-

Leonard Chafee, The Internal Affairs of Associations Not for Profit, 43 Harv. L. Rev. 993,1026-27 (1930) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-

Fernand N. Dutile, Disciplinary Versus Academic Sanctions in Higher Education: A DoomedDichotomy?, 29 J.C. & U.L. 619 (2003) 29 J.C. & U.L. 619 (2003) . . . . . . . . . . . . . . . . . . . . -6-

John Friedl, Punishing Students for Non-Academic Misconduct, 26 J.C. & U.L. 701 (2000) -11-

Robert B. Groholski, The Right to Representation by Counsel in University DisciplinaryProceedings: A Denial of Due Process, 19 N. Ill. U. L. Rev. 739 (1999) . . . . . . . . . . . . . . . . -12-

Edward J. Golden, Procedural Due Process for Students at Public Colleges and Universities, 11J.C. & U.L. 337 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-

Kenneth Lasson, Controversial Speakers on Campus: Liberties, Limitations, and Common-SenseGuidelines, 12 St. Thomas L. Rev. 39, 80 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -10-

Johanna Matloff, The New Star Chamber: an Illusion of Due Process Standards at PrivateUniversity Disciplinary Hearings, 35 Suffolk U. L. Rev. 169 (2001) . . . . . . . . . . . -11-, -19-, -20-

Robert B. McKay, The Student as Private Citizen, 45 Denv. U. L. Rev. 558 (1968) . . . . . . . -12-

Note: Private Government on the Campus – Judicial Review of University Expulsions, 72 YaleL.J. 1362 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-

Note, Common Law Rights for Private University Students: Beyond the State Action Principle,84 Yale L.J. 120, 137 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-

Douglas R. Richmond, Students' Right to Counsel in University Disciplinary Proceedings, 15J.C. & U.L. 289 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-

Paul E. Rosenthal, Speak Now: The Accused Student's Right to Remain Silent in PublicUniversity Disciplinary Proceedings, 97 Colum. L. Rev. 1241 (1997) . . . . . . . . . . . . . . . . . . -12-

E. H. Schopler, Right of Student to Hearing on Charges Before Suspension or Expulsion fromEducational Institution, 58 A.L.R.2d 903. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-

Warren A. Seavey, Dismissal of Students: Due Process, 70 Harv. L. Rev. 1406, 1407 (1957) -13-

Evan G.S. Siegel, Closing the Campus Gates to Free Expression: the Regulation of OffensiveSpeech at Colleges and Universities, 39 Emory L.J. 1351, 1387-88 (1990) . . . . . . . . . . -10-, -11-

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Siegel, New York Practice at § 327 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-

Scott R. Sinson, Judicial Intervention of Private University Expulsions: Traditional Remediesand A Solution Sounding in Tort, 46 Drake L. Rev. 195, 223 (1997) . . . . . . . . . . . . . . . . -3-, -12-

Marc H. Shook, The Time is Now: Arguments for the Expansion of Rights for Private UniversityStudents in Academic Disciplinary Hearings, 24 Law & Psychol. Rev. 77 (2000) . . . . . . . . . -12-

Lisa Swem, Due Process in Student Disciplinary Matters, 14 J.C. & U.L. 359 (1987) . . . . . -12-

Lisa Tenerowicz, Student Misconduct at Private Colleges and Universities: A Roadmap for"Fundamental Fairness" in Disciplinary Proceedings, 42 B.C. L. Rev. 653, 683-84 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -20-, -26-

7A Weinstein-Korn-Miller, NY Civ Prac, ¶ 6301.05, p 63-11. . . . . . . . . . . . . . . . . . . . . . . . . . -2-

Charles Alan Wright, The Constitution on Campus, 22 Vand. L. Rev. 1027 (1969) . . . . . . . -12-

1 Derek Bok, Reflections on Free Speech: An Open Letter to the Harvard Community, 66Educ. Rec. 4, 6 (1985).

2 McNabb v. United States, 318 U.S. 332, 347 (1943) (per Holmes, J.)

3 Leonard Chafee, The Internal Affairs of Associations Not for Profit, 43 Harv. L. Rev. 993,1026-27 (1930).

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“The job of the university is not to make ideas safefor students; it is to make students safe for ideas.” 1

“The history of liberty has largely been the history of observance of procedural safeguards.” 2

“An institution which professes to prepare youth forlife in a democracy might wisely give them an exampleof fair play when it is conducting its own affairs.” 3

Introduction

Plaintiff submits this brief in support of his motion for temporary reinstatement as a

graduate student at Le Moyne College pending the outcome of this litigation. Nothing less than

the future of academic freedom is at stake in this proceeding. Defendants’s failure to uphold

both academic freedom and the principles of due process inherent to it rendered their decision to

expel plaintiff arbitrary and capricious. Under settled New York law, he is entitled to

reinstatement.

4 A permanent injunction is a final judgment which may be granted after a trial on the merits. Gambar Enterprises v Kelly Services, 69 A.D.2d 297, 418 N.Y.S.2d 818 (4th Dept., 1979); 7AWeinstein-Korn-Miller, NY Civ Prac, ¶ 6301.05, p 63-11.

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POINT I

DEFENDANTS’ EXPULSION OF PLAINTIFF WAS ARBITRARYAND CAPRICIOUS, ENTITLING HIM TO IMMEDIATEREINSTATEMENT AT LE MOYNE COLLEGE

A. Preliminary Injunction

Under CPLR 6301:

A preliminary injunction may be granted in any action where...plaintiff has demanded and would be entitled to a judgmentrestraining the defendant from the ... continuance of an act, which,if ... continued during the pendency of the action, would produceinjury to the plaintiff.4

As Prof. Siegel has noted:

CPLR 6301 authorizes a preliminary injunction to enjoin duringthe action that which P [plaintiff] seeks to enjoin permanently withthe final judgment.... The standards for the issuance of theseinjunctions are so well known that most judges don't even bother tocite the source--CPLR 6301--so that even written opinionsaccompanying preliminary injunction grants often omit citations.

Siegel, New York Practice at § 327.

Those well known standards are: (i) likelihood of success on the merits, in this case, that

defendants’ action in expelling Mr. McConnell was arbitrary and capricious; (ii) irreparable

injury; and (iii) a balance of equities in the movant’s favor. Aetna Ins. Co. v. Capasso, 75

N.Y.2d 860, 862, 552 N.Y.S.2d 918, 552 N.E.2d 166 (1990); Doe v. Axelrod, 73 N.Y.2d 748,

536 N.Y.S.2d 44, 532 N.E.2d 1272 (1988); W.T. Grant Co. v. Srogi, 52 N.Y.2d 496, 517, 438

5 Tedeschi provides a sui generis form of equitable relief because, as the Court of Appealsexplained, neither the law of contracts nor the law of associations adequately provides anindependent basis for the remedy. Commentators have taken differing views, some endorsing thecontract theory, Curtis Berger and Vivian Berger, Academic Discipline: A Guide to Fair Processfor the University Student, 99 Colum. L. Rev. 289, 364 (1999), others suggesting the remedy liesin tort. Scott R. Sinson, Judicial Intervention of Private University Expulsions: TraditionalRemedies and A Solution Sounding in Tort, 46 Drake L. Rev. 195, 223 (1997).

-3-

N.Y.S.2d 761, 420 N.E.2d 953 (1981).

Here, there are no factual issues reasonably in dispute. However, even if there were,

“The existence of a factual issue on a motion for a preliminary injunction is not, standing alone, a

sufficient basis for its denial. CPLR 6312(c).” Sylmark Holdings Ltd. v. Silicone Zone Intern.

Ltd., 5 Misc.3d 285, 295, 783 N.Y.S.2d 758, 769 (N.Y. Cnty., 2004).

B. Defendants’ Action in Expelling Mr. McConnellWithout Any Due Process Under the Le MoyneConduct Code Was Arbitrary and Capricious as aMatter of Law

Defendants cannot dispute that Mr. McConnell was not afforded any due process under

the procedures set forth in Exhibit 5 to the verified complaint. Therefore, he has demonstrated

his likelihood of success on the merits. Tedeschi v. Wagner College, 49 N.Y.2d 652, 661, 404

N.E.2d 1302, 1307, 427 N.Y.S.2d 760, 765 (1980):

We hold that such an institution is bound by its own rules.... [W]ehold that when a university has adopted a rule or guidelineestablishing the procedure to be followed in relation to suspensionor expulsion that procedure must be substantially observed.5

As the Fourth Department held in Gray v. Canisius College of Buffalo, 76 A.D.2d 30, 33-34, 430

N.Y.S.2d 163, 166-67 (4th Dept., 1980), citing Tedeschi:

Thus, courts have traditionally reviewed the action of privatecolleges and universities in cases where it was alleged that the

6 In addition to Tedeschi and the other New York cases cited herein, state and federal courtsacross the nation require academic due process and fundamental fairness in academic disciplinaryproceedings. See, e.g., Harwood v. Johns Hopkins Univ., 747 A.2d 205, 209 (Md. Ct. Spec. App.2000); Schaer v. Brandeis Univ., 735 N.E.2d 373, 380 (Mass. 2000) (holding school failed tocomply with “Rights and Responsibilities” published in student handbook: “[w]e ... examine thehearing to ensure that it was conducted with basic fairness."); Anderson v. Mass. Inst. of Tech.,1995 WL 813188 1, 4-5 (Mass. Super. 1995) (holding that courts will intervene if “theuniversity's action was arbitrary and capricious” defined as a failure of the college to follow itsown rules and provide a hearing that is fundamentally fair, which includes written notice ofcharges, written statement of the evidence against the offending student, the names ofprosecution witnesses, an unbiased tribunal, and the student’s right to defend, confront witnessesagainst him and controvert evidence); Fellheimer v. Middlebury Coll., 869 F. Supp. 238, 244 (D.Vt. 1994) ("The College has agreed to provide students with proceedings that conform to astandard of 'fundamental fairness' and to protect students from arbitrary and capriciousdisciplinary action to the extent possible within the system it has chosen to use."); Ahlum v.Adm'rs of the Tulane Educ. Fund, 617 So. 2d 96, 98-99 (La. Ct. App. 1993) ("The disciplinarydecisions of a private school may be reviewed for arbitrary and capricious action.... "[D]ueprocess safeguards in private schools cannot be cavalierly ignored or disregarded."); Coveney v.Pres. of Coll. of the Holy Cross, 445 N.E.2d 136, 138 (Mass. 1983) ("[A] private university,

(continued...)

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institution had failed to follow its own hearing or reviewprocedures in the discipline of a student or the dismissal of afaculty member (citations omitted.).

* * * * *

if the college or university makes its determination ... in bad faithor in a manner which is arbitrary and capricious, this action couldnever receive the sanction of a court in which even the semblanceof justice was attempted to be administered (citations omitted).

Bennett v. Wells College, 932, 219 A.D.2d 352, 357, 641 N.Y.S.2d 929 (4th Dept., 1996)

(granting Article 78 to professor denied tenure, holding: “Private colleges and universities,

having accepted a State charter, ‘can be compelled in an article 78 proceeding to fulfill not only

obligations imposed upon them by State or municipal statutes but also those imposed by their

internal rules.’”); Grogen v. St. Bonaventure University, 91 A.D.2d 855, 458 N.Y.S.2d 410 (4th

Dept., 1982) (same).6

6(...continued)college, or school may not arbitrarily or capriciously dismiss a student."); Psi Upsilon of Phila. v.Univ. of Pa., 591 A.2d 755, 758 (Pa. Super. Ct. 1991) (courts will intervene to protect studentsfrom “bias or denial of due process”); Cloud v. Trustees of Boston Univ., 720 F.2d 721, 725 (1stCir. 1983) (“We also examine the hearing to ensure that it was conducted with basic fairness.”).

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Defendants have no refuge in the claim that Mr. McConnell failed to press his due

process rights, as his expulsion was summary, and he only learned of it when he received

defendant Leogrande’s January 13, 2005, letter as he was about to begin his course work for the

Spring, 2005 semester. Even had he been apprized of his expulsion beforehand, however, this

would provide defendants with no cover.

Nor can we accept the suggestion that plaintiff was obliged tomake a formal demand for a hearing before the Student-FacultyHearing Board. Not only is the guideline phrased in mandatoryterms ("shall have the right to be heard") but also it was theobligation of the college in effecting the suspension to callplaintiff's attention to the further procedures provided for by theguidelines (citation omitted.) Even were that not so, plaintiff'scomplaint which specifically noted that she had never had ahearing would constitute a sufficient demand (citation omitted).

Tedeschi v. Wagner College, 49 N.Y.2d at 661, 404 N.E.2d at 1307, 427 N.Y.S.2d at 765.

In Kwiatkowski v. Ithaca College, 82 Misc.2d 43, 45-46, 368 N.Y.S.2d 973, 977

(Tompkins Cnty., 1975), a pre-Tedeschi case cited in Gray v. Canisius College of Buffalo, supra,

the court held that:

it is imperative that the college or university's decision to disciplinethe student be predicated on procedures which are fair andreasonable and which lend themselves to a reliable determination.(citations omitted). These authorities implicitly recognize that theneed to obtain a higher education for most high school graduates ismore a necessity than a luxury and that the courts will not permit astudent's efforts to attain this goal to be thwarted because of aninnately unfair disciplinary proceeding.

7 See, Fernand N. Dutile, Disciplinary Versus Academic Sanctions in Higher Education: ADoomed Dichotomy?, 29 J.C. & U.L. 619 (2003) (arguing the distinction between academicdiscipline/judicial restraint and non-academic discipline/unrestrained judicial scrutiny isunpersuasive in light of due process).

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The Court of Appeals agrees, “[r]ecognizing the present day importance of higher education to

many, if not most, employment opportunities,” and the “one-sided relationship between the

institution and the individual.” Tedeschi, 49 N.Y.2d at 658, 660, 404 N.E.2d at 1305-06, 427

N.Y.S.2d at 763-64. See, generally, E. H. Schopler, Right of Student to Hearing on Charges

Before Suspension or Expulsion from Educational Institution, 58 A.L.R.2d 903.

Indeed, the Tedeschi doctrine is even broader today than when first announced in 1980.

Whereas in Tedeschi, the Court of Appeals distinguished between discipline imposed for

academic reasons, which the courts were reluctant to second guess, and discipline imposed for

non-academic reasons, which the courts will not hesitate to scrutinize, in 1990, the high court

subsequently held that even “determinations of educational institutions as to the academic

performance of their students are not completely beyond the scope of judicial review,” if “the

challenged determination was arbitrary and capricious, irrational, made in bad faith or contrary to

Constitution or statute.” Susan M. v. New York Law School, 76 N.Y.2d 241, 246, 556 N.E.2d

1104, 1107, 557 N.Y.S.2d 297, 300 (1990).7

The claim that Mr. McConnell was not “expelled,” but instead, he would “not be allowed

to register for any additional courses” and that his “registration for Spring 2005 courses has been

withdrawn,” (verified complaint at ¶ 22 and Exhibit 1) is not only arrant nonsense, it also

provides defendants with no legal cover, as the decision not to admit a student on grounds which

are “arbitrary and capricious, irrational, made in bad faith or contrary to Constitution or statute,”

8 Available online at http://www.aaup.org/statements/Redbook/Studentrights.htm).

-7-

is likewise subject to review under CPLR 7803(3). Bottalico v Adelphi University, 299 A.D.2d

443, 749 N.Y.S.2d 734, 735 (2d Dept. 2002) (citing Susan M); Lusardi v. State University of

New York at Buffalo, 726 N.Y.S.2d 202 (4th Dept., 2001); Ratigan v. Daemen College, 273

A.D.2d 891, 710 N.Y.S.2d 267 (4th Dept., 2000); Sabin v. State University of New York Maritime

College, 92 A.D.2d 831, 460 N.Y.S.2d 332 (1st Dept., 1983) (decision to “disenroll” student

reviewable under Article 78).

C. Due Process is Not Only Mandated by New York Law,It is a Vital Component of Academic Freedom

In June 1967, the American Association of University Professors, the United States

National Student Association, the Association of American Colleges, the National Association of

Student Personnel Administrators, and the National Association of Women Deans and

Counselors, issued their “Joint Statement on Rights and Freedoms of Students,” in American

Association of University Professors, Policy Documents & Reports (1990) (the “Statement on

Academic Freedom”).8

Paragraph II.A states:

Students should be free to take reasoned exception to the data orviews offered in any course of study and to reserve judgmentabout matters of opinion, but they are responsible for learning thecontent of any course of study for which they are enrolled. (Emphasis added.)

Paragraph II.B provides:

[s]tudents should have protection through orderly proceduresagainst prejudiced or capricious academic evaluation. At thesame time, they are responsible for maintaining standards of

9 Plaintiff alleges the paper containing his statements about multiculturalism and corporalpunishment was passed on by his professor, defendant Mark Trabucco, to the head of theEducation Department, defendant Cathy Leogrande and others. [Verified Complaint, ¶ 15.]

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academic performance established for each course in which theyare enrolled (emphasis added).

Paragraph III.B provides students with protections against disclosure by their professors of their

personal beliefs and political views:

Information about student views, beliefs, and political associationswhich professors acquire in the course of their work as instructors,advisers, and counselors should be considered confidential. Protection against improper disclosure is a serious professionalobligation. Judgments of ability and character may be providedunder appropriate circumstances, normally with the knowledge orconsent of the student. (Emphasis added.).9

The “orderly procedures” described in Paragraph II.B are expanded upon in Part VI,

“Procedural Standards In Disciplinary Proceedings,” which mandates that, when discipline is

imposed, “proper procedural safeguards should be observed to protect the student from the unfair

imposition of serious penalties.” Section VI.A elaborates:

The institution has an obligation to clarify those standardswhich it considers essential to its educational mission and itscommunity life. These general behavioral expectations and theresultant specific regulations should represent a reasonableregulation of student conduct, but students should be as free aspossible from imposed limitations that have no direct relevanceto their education. Offenses should be as clearly defined aspossible and interpreted in a manner consistent with theaforementioned principles of relevancy and reasonableness. Disciplinary proceedings should be instituted only for violations ofstandards of conduct formulated ... and published in advancethrough such means as a student handbook or a generally availablebody of institutional regulations. (Emphasis added.)

Finally, Section VI.D states that “[w]hen the misconduct may result in serious penalties,”

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students are entitled to “a hearing before a regularly constituted hearing committee.” That section

outlines the basic parameters of such a hearing, including (i) participation of disinterested

members of the faculty and/or students, (ii) written notice to the accused of the grounds for the

proposed disciplinary action stated with particularity and provided in time to ensure an

opportunity to prepare a response, and (iii) a requirement that all evidence supporting the

disciplinary action be submitted at the hearing.

Hence, the Statement on Academic Freedom makes clear that “academic freedom” is

more than just the adherence to general principles of freedom of thought and expression. To

make academic freedom a reality, a college or university must adhere to procedural fairness

before imposing discipline for student misconduct based upon speech.

D. The Issues at Stake in This Case Are Far ReachingBecause Academic Freedom, Including Academic DueProcess, is Essential to American Democracy

Nearly four decades ago, the Supreme Court declared:

Our Nation is deeply committed to safeguarding academicfreedom, which is of transcendent value to all of us ... Thatfreedom is therefore a special concern of the First Amendment,which does not tolerate ... a pall of orthodoxy over the classroom. The vigilant protection of constitutional freedoms is nowhere morevital than in the community of American schools. (Citationomitted.) The classroom is peculiarly the marketplace of ideas. The Nation’s future depends upon leaders trained through wideexposure to that robust exchange of ideas which discovers truth outof a multitude of tongues, rather than through any kind ofauthoritative selection. (Citations omitted.) The essentiality offreedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracythat is played by those who guide and train our youth. To imposeany strait jacket upon the intellectual leaders in our colleges anduniversities would imperil the future of our Nation. No field ofeducation is so thoroughly comprehended by man that new

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discoveries cannot yet be made. Particularly is that true in thesocial sciences, where few, if any, principles are accepted asabsolutes. Scholarship cannot flourish in an atmosphere ofsuspicion and distrust. Teachers and students must always remainfree to inquire, to study and to evaluate, to gain new maturity andunderstanding; otherwise our civilization will stagnate and die.

Keyishian v. Board of Regents of University of State of New York, 385 U.S. 589, 603-604, 87

S.Ct. 675, 683-684 (1967). Simply put, a free society is built upon the foundation of the free

exchange of ideas, especially in academia. T.I. Emerson, The System of Freedom of Expression

617-18 (1970) (describing the function of a university in democratic society); A. Meiklejohn,

Political Freedom 125-47 (1965) (discussing intellectual freedom and the integrity of

universities); Kenneth Lasson, Controversial Speakers on Campus: Liberties, Limitations, and

Common-Sense Guidelines, 12 St. Thomas L. Rev. 39, 80 (1999) (quoting statement of American

Association of University Professors in 1915 and describing history of academic freedom and

purpose of university community to freely pursue truth); J.S. Mill, On Liberty 33-106 (1863)

(arguing that liberty of thought and discussion demands a robust competition of ideas); Abrams v.

United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (“The ultimate good desired is

better reached by free trade in ideas.... The best test of truth is the power of the thought to get

itself accepted in the competition of the market.”).

Accordingly, plaintiff submits that, “by diminishing the first amendment rights of the

campus community, a private university renders meaningless a value that is both fundamental to

the educational system and deeply rooted in the American tradition.” Evan G.S. Siegel, Closing

the Campus Gates to Free Expression: the Regulation of Offensive Speech at Colleges and

Universities, 39 Emory L.J. 1351, 1387-88 (1990). No doubt, defendants will insist that Le

Moyne cannot be held to account because it is a private entity. Although it is not a public

10 Johanna Matloff, The New Star Chamber: an Illusion of Due Process Standards at PrivateUniversity Disciplinary Hearings, 35 Suffolk U. L. Rev. 169 (2001); John Friedl, PunishingStudents for Non-Academic Misconduct, 26 J.C. & U.L. 701 (2000); Marc H. Shook, The Time is

(continued...)

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college, in the context of academic freedom, Le Moyne’s reliance on the private/public

distinction to escape its responsibility to uphold academic freedom is flawed:

[T]he state action doctrine mandates judicial enforcement ofconstitutional liberties against institutional infringements for halfthe nation's academics [and students] and denies it to the other halffor reasons which, if desirable at all, are very far removed from therealities of academic life.

J. Peter Byrne, Academic Freedom: A Special Concern of the First Amendment, 99 Yale L.J. 251,

300 (1989). That is because

[t]he educational mission of a university, whether public or private,includes promotion of the free exchange of ideas, the pursuit ofknowledge, and a tolerance of diversity in opinion. Fewinstitutions better exemplify the marketplace of ideas. A studentwho chooses to attend a private college instead of an equallyreputable state university assumes that he will receive at least thesame quality of education and expects that he will enjoy the kind offreedom and independence he would have at a public institution.

Siegel, 39 Emory L.J. at 1385. Hence, because “[n]o rational distinction should be drawn

between ‘public’ and ‘private’ universities,’ ... it would be a cruel hoax on the integrity of the

educational process for any university to take refuge in the public-private distinction in

justification of otherwise unsupportable policies.” Robert B. McKay, The Student as Private

Citizen, 45 Denver L.J. 558, 560 (1968).

Universally, commentators over the last forty years who examined academic disciplinary

proceedings have called for strict adherence to basic due process principles to protect academic

freedom.10

10(...continued)Now: Arguments for the Expansion of Rights for Private University Students in AcademicDisciplinary Hearings, 24 Law & Psychol. Rev. 77 (2000); Hazel Glenn Beh, Student VersusUniversity: The University's Implied Obligation of Good Faith and Fair Dealing, 59 Md. L. Rev.183 (2000); Curtis J. Berger & Vivian Berger, Academic Discipline: A Guide to Fair Process forthe University Student, 99 Colum. L. Rev. 289 (1999); Scott R. Sinson, Judicial Intervention ofPrivate University Expulsions: Traditional Remedies and A Solution Sounding in Tort, 46 DrakeL. Rev. 195, 223 (1997) (arguing that “[t]he unjust expulsion of a student from a universityshould lie in tort, and not contracts.”); Thomas R. Baker, Cross-Examination of Witnesses inCollege Student Disciplinary Hearings: A New York Case Rekindles an Old Controversy, 142Educ. L. Reptr. 11, 22-23 (2000); Robert B. Groholski, The Right to Representation by Counselin University Disciplinary Proceedings: A Denial of Due Process, 19 N. Ill. U. L. Rev. 739(1999); Paul E. Rosenthal, Speak Now: The Accused Student's Right to Remain Silent in PublicUniversity Disciplinary Proceedings, 97 Colum. L. Rev. 1241 (1997); Douglas R. Richmond,Students' Right to Counsel in University Disciplinary Proceedings, 15 J.C. & U.L. 289 (1989);Mark S. Blaskey, University Students' Right to Retain Counsel for Disciplinary Proceedings, 24Cal. W.L. Rev. 65 (1988); Lisa Swem, Due Process in Student Disciplinary Matters, 14 J.C. &U.L. 359 (1987); Edward J. Golden, Procedural Due Process for Students at Public Collegesand Universities, 11 J.C. & U.L. 337 (1982); Note, Common Law Rights for Private UniversityStudents: Beyond the State Action Principle, 84 Yale L.J. 120, 137 (1974); Charles Alan Wright,The Constitution on Campus, 22 Vand. L. Rev. 1027 (1969); Robert B. McKay, The Student asPrivate Citizen, 45 Denv. U. L. Rev. 558 (1968); Note, Private Government on the Campus –Judicial Review of University Expulsions, 72 Yale L.J. 1362 (1963).

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E. Academic Due Process is a Value of ConstitutionalDimension

The verified complaint at ¶¶ 36 to 45 describes the statutory mandate for academic due

process in New York. In sum and substance, Education Law § 6430 mandates that all colleges

and universities adopt and file with the Department of Education a written conduct code and due

process procedures to adjudicate violations, and these are deemed part of the institution’s by-

laws and “shall govern the conduct of students, faculty and other staff” and “[t]he penalties for

violations of such rules shall be clearly set forth therein ....” Le Moyne’s conduct code and due

process procedures are annexed to the verified complaint as Exhibit 5. They are essentially in

keeping with the requirements of the Statement on Academic Freedom.

11 According to the verified complaint, defendants expelled plaintiff because he could not becertified to teach in New York where his views were in conflict with New York law whichmandates multiculturalism in the classroom and bans corporal punishment. [Verified Complaintat ¶¶ 22, 28, 31.]

12 The plaintiffs were represented by Jack Greenberg and Thurgood Marshall.

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This is significant because what the Statement on Academic Freedom expects from all

colleges and universities, the Constitution specifically requires from those acting under color of

state authority.11 Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961), was

the first case tying academic due process to the Constitution.12 Alabama State College expelled

six students on grounds of misconduct without providing them either detailed charges or the

evidence against them. Id. at 154-55. The Fifth Circuit held that due process required notice and

a hearing before any student could be expelled for alleged misconduct. Id. at 158. The Fifth

Circuit characterized the summary expulsions as “outrageous action” and cited the “eloquent

comment” by Professor Warren A. Seavey, Dismissal of Students: Due Process, 70 Harv. L. Rev.

1406, 1407 (1957):

It is shocking that the officials of a[n] ... educational institution,which can function properly only if our freedoms are preserved,should not understand the elementary principles of fair play. It isequally shocking to find that a court supports them in denying to astudent the protection given to a pickpocket.

Id.

Fourteen years later, the Supreme Court sharpened the contours of Dixon in Goss v.

Lopez, 419 U.S. 565, 579-80 (1975). Referring to Dixon as “landmark decision,” id. at 576, n.8.,

it held that students facing even a temporary suspension must be afforded notice of charges and

an opportunity to be heard. Id. at 581.

In Board of Curators of the University of Missouri v. Horowitz, 435 U.S. 78, 86 (1978),

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the Supreme Court further refined its academic due process jurisprudence, making clear that even

more stringent procedural safeguards were required for suspensions or expulsion based upon

infractions unrelated to academic performance.

Recently, in Doe v. University of Michigan, 721 F. Supp. 852, 867 (E.D. Mich. 1989), the

court struck down a university-wide anti-harassment rule that prohibited “verbal conduct” which

had “the reasonably foreseeable effect of interfering with an individual's academic efforts”

because it was unconstitutionally vague, noting that “it was simply impossible to discern any

limitation on its scope or any conceptual distinction between protected and unprotected conduct.”

Id.

Similarly, courts have repeatedly held that punishment of teachers for improper classroom

speech required notice. Keyishian v. Board of Regents, 385 U.S. at 604 (New York law designed

to preclude appointment or retention of “subversive” teachers violates First Amendment, inter

alia, due to chilling effect on academic freedom: “When one must guess what conduct or

utterance may lose him his position, one necessarily will ‘steer far wider of the unlawful zone

...’”); Cohen v. San Bernardino Valley College, 92 F.3d 968, 970, 972 (9th Cir. 1996) (university

violated First Amendment by punishing teacher for sexual harassment based on his classroom

speech, which included “repeated focus on topics of a sexual nature, his use of profanity and

vulgarities, and by his comments which [complainant] believed were directed intentionally at her

and other female students in a humiliating and harassing manner”; court held that “the [sexual

harassment] Policy is simply too vague as applied to [professor] in this case”); Bradley v.

Pittsburgh Bd. of Educ., 910 F.2d 1172, 1177, 1179 (3d Cir. 1990) (teacher’s allegation that ban

on “Learnball” teaching technique failed to give her adequate notice of what is prohibited stated

13 Le Moyne’s conduct code annexed as Exhibit 5 to the verified complaint is silent regardingspeech for which students may be suspended or expelled.

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a due process claim); Lacks v. Ferguson Reorganized School Dist., 936 F. Supp. 676, 685 (E.D.

Mo. 1996) (“this circuit has long recognized a teacher's right to notice of what classroom conduct

is prohibited”); Silva v. University of New Hampshire, 888 F. Supp. 293, 312-13 (D.N.H. 1994)

(punishment of professor for having analogized belly dancing to a bowl of jello with a vibrator

underneath, and for having analogized the “focus” process in writing to sexual intercourse,

violated First Amendment; sexual harassment “hostile environment” policy did not give adequate

notice that such statements could be punished).

The holding in Ward v. Hickey, 996 F.2d 448, 452-53 (1st Cir. 1993) states the principle

applicable to the instant case. The court held that speech could be punished only if “the school

provided the teacher notice of what conduct was prohibited” because a college “is not entitled to

retaliate against speech that it never prohibited.”13

The above cases are notable because, unlike students, teachers’ First Amendment rights

as employees are given less protection than students’ First Amendment rights as citizens at large.

Waters v. Churchill, 511 U.S. 661, 671-72 (1994) (plurality op.) Compare Papish v. Bd. of

Curators of the University of Missouri, 410 U.S. 667, 670 (1973) (enjoining the expulsion of a

graduate student who, when University was hosting high school students and their parents,

distributed newspaper depicting a policeman raping the Statute of Liberty and the Goddess of

Justice and a headline “M ** F** Acquitted”; the Supreme Court rejected reasoning of lower

appellate court that “on a university campus ‘freedom of expression’ could properly be

‘subordinated to other interests such as, for example, the conventions of decency in the use and

14 In that regard, it is noteworthy that political and legal commentators following this case havefound it to be an extreme example of the oppression of academic freedom. David Limbaugh,“False Promises of Academic Freedom,” WorldNetDaily, May 6, 2005,http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=44143, quoting David French,President of the Foundation for Individual Rights in Education: “This is one of the most brazenexamples of censorship and summary expulsion for the expression of dissenting views I haveever seen”; David Holman, “A Neo-Jesuit Education,” The American Spectator, February 25,2005, http://www.spectator.org/util/print.asp?art_id=7811 (“Le Moyne’s education program isnow exposed as little more than thought camp,” contrasting fact that members of Le Moyne’sreligion faculty endorse homosexual marriage, asking: “If this Catholic college’s academicfreedom allows supposed theologians attacking church teaching, why not McConnell, whomerely believes in firm discipline?”); Scott Jaschik, “Spanked Out of Grad School,” InsideHigher Education, February 2, 2005, http://www.insidehighered. com/news/2005/02/02/spanked2_2 (pointing out that Le Moyne College offers courses in hip-hop music which feature“lyrics about rape, killing and other violence directed at women,” suggesting that “maybe ScottMcConnell should ... learn how to sing his corporal punishment views in the hip-hop style so thatLe Moyne’s administration will find his discussion of corporal punishment as acceptable as theyfind hip-hop songs about rape, killing, and other violence directed at women.” In addition, Le

(continued...)

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display of language and pictures.’”)

Thus, whether dealing with the less protected free speech rights of faculty employees or

the more protected free speech rights of students, courts repeatedly have insisted on basic

standards of due process to uphold academic freedom. Here, Le Moyne has punished Mr.

McConnell's speech without ever identifying a standard that he violated, even a vague one like

the standard struck down in Doe v. University of Michigan. Simply put, defendants’ decision to

expel Mr. McConnell shocks the conscience: defendants acted without referring to any specific

rule of conduct, and without giving him any reasonable chance to defend himself against charges

that remain inchoate and undefined.

F. Irreparable Injury and Balance of Equities

It cannot be gainsaid that Mr. McConnell will be irreparably injured if he is not reinstated

pendente lite, given the outrageous facts of this case.14 His teaching career has been severely

14(...continued)Moyne’s expulsion of Mr. McConnell won first place in the 2005 Campus Outrage Awards givenby Campus Magazine Online.

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harmed. As detailed in his affidavit, defendants’ violation of his rights was contagious, and days

later, he was suspended by the Syracuse school district as a substitute teacher. In addition, Mr.

McConnell continues to suffer the reputational injury which any student suffers who is expelled

from college or graduate school. In Mary M v. Clark, 118 Misc.2d 98, 460 N.Y.S.2d 424

(Cortland Cnty., 1983), the court granted Article 78 relief, annulling the college’s finding that

Mary M had cheated, and expunging all references to it from her record. The court held:

Although the rules governing due process are less stringent forproceedings involving academic dismissal than for disciplinarymatters (Board of Curators of Univ. of Missouri v. Horowitz, 435U.S. 78, 98 S.Ct. 948, 55 L.Ed.2d 124), nevertheless even minimalprocedural due process requires that petitioner be given (1) writtennotice of the charges against her, (2) a written statement of the factfinders as to the evidence relied on and the reasons for the actiontaken, and (3) an opportunity to call witnesses and presentdocumentary evidence. (Wolff v. McDonnell, 418 U.S. 539, 94S.Ct. 2963, 41 L.Ed.2d 935.) Moreover, the hearing in the instantcase was disciplinary in nature, not academic.... Here, ... thepetitioner faces a great disgrace which could be a lifetime burdenand no academic standards are involved.

Ryan v. Hofstra University, 67 Misc.2d 651, 662, 324 N.Y.S.2d 964, 976 (Nassau Cnty., 1971)

(recognizing “greater opprobrium attached to expulsion.”) Indeed, the court’s holding in Ryan,

reinstating under CPLR 7803(3) a student expelled for vandalism, is equally applicable to the

instant case:

Hofstra University, though termed a 'private' university, cannotexpel, bar and fine a student without following fair and reasonableprocedures. It cannot be arbitrary. It must abide by constitutionalprinciples of fair conduct implicit in our society.

15 As a matter of law, deprivation of constitutional due process rights is deemed an irreparableinjury. See, e.g., Seawall Associates v. City of New York, 134 Misc.2d 187, 510 N.Y.S.2d 435(N.Y. Cnty., 1986) (“A violation of constitutional due process rights constitutes irreparableinjury.”); Dixon v. Alabama, 294 F.2d 150 (5th Cir. 1961).

16 The law provides in pertinent part: “No private post secondary educational institution shall make or enforce any rule subjecting any student to disciplinary sanctions solely on the basis ofconduct that is speech or other communication that, when engaged in outside the campus orfacility of a private post secondary institution, is protected from governmental restriction by theFirst Amendment to the United States Constitution or Section 2 of Article 1 of the CaliforniaConstitution.” An aggrieved student has a right of action for injunctive relief and attorneys fees.

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* * * * *

School has come back into session, the student is barred fromattendance, his punishment is being felt every day, and the incidentis over four months old. Now is the time for adjudication.15

That the Syracuse public school authorities suspended Mr. McConnell from substitute

teaching because he was expelled from Le Moyne proves that Le Moyne’s denigration of

academic freedom is not a benign event, but a malignant one that spreads beyond its own

campus. Oppression of free speech on one campus damages free speech on all campuses.

Harvey A. Silvergate and Alan Charles Kors, The Shadow University - The Betrayal of Liberty

on America’s Campuses, Free Press (1998). As these authors bitterly observed:

[T]here is virtually no place left in the United States wherekangaroo courts and Star Chambers are the rule rather than theexception – except on college and university campuses ... wherenot only is arbitrariness widespread, but where fair procedures andrational fact-finding mechanisms, with disturbing and surprisingfrequency, are actually precluded by regulations.

The Shadow University at 268, 289. This sorry state of affairs inspired California to adopt the

“Leonard Law” which explicitly prohibits private universities from imposing any discipline

based on protected speech. Cal. Ed. Code § 94367(a).16

17 See Patrick Healy, When 'Zero Tolerance' Policies Shatter College Life, Boston Globe, Dec.17, 2000, at A1, A42 (describing how Josh Bergen, a student improperly expelled from HolyCross, was consumed with debt, guilt and hopelessness. “He has $103,000 in college debt and awarehouse job that pays $8.50 per hour.”) Mr. Healy, now employed by the New York Times,was the reporter who wrote the article annexed as Exhibit B to the instant motion.

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When private universities blatantly ignore due process standards atdisciplinary hearings, everyone's due process rights are at stake.College disciplinary hearings are educational tools, and therefore,private colleges are teaching young Americans that the end result isfar more important than the process. When college students enterAmerican society as adults, their ideas about due process will bedistorted. Our Constitution does not tolerate this inverted notion ofjustice; neither should private universities or the courts thatinterpret private university disciplinary decisions. If anything,American colleges and universities should teach students to respectand cherish the ideal that one is innocent until proven guilty underdue process of law.

Johanna Matloff, The New Star Chamber: an Illusion of Due Process Standards at Private

University Disciplinary Hearings, 35 Suffolk U. L. Rev. 169, 188 (2001).

Beyond Ryan and Mary M, courts outside New York also recognize the terrible

consequences of suspension or expulsion on a student’s life and future. See, e.g., Greenhill v.

Bailey, 519 F.2d 5, 8 (6th Cir. 1975) (acknowledging that expulsion of medical student effectively

destroyed his chance of ever practicing medicine); Schaer v. Brandeis Univ., 716 N.E.2d 1055,

1059 (Mass. App. Ct. 1999) (acknowledging student record of misconduct significantly harms

student's future career).17 Thus,

a dismissal or expulsion from a college or university ... can alter astudent's legal status and make admission to another schoolimpossible. Specifically, when a student is expelled, he is oftenunable to enroll in a different university because in order totransfer, he must demonstrate to the new school that he left hisformer school in good standing. Because a university degree isgenerally required for employment in technologically sophisticatedfields and for admission to graduate and professional school, and

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because students with university degrees often earn higher salariesthan students who are not university graduates, an erroneousexpulsion may foreclose future economic opportunities for thatstudent. Thus, the economic wound inflicted by an expulsioncould remain with the student for the rest of life. In addition, insome instances the wound can run deeper and permanently damagethe student's good name, reputation and integrity. In highlypoliticized, notorious cases, universities have publicized theapprehension of the offending student to placate the universitycommunity, with little regard for the emotional distress to thestudent or the irreparable harm to the student's reputation.

Lisa Tenerowicz, Student Misconduct at Private Colleges and Universities: A Roadmap for

"Fundamental Fairness" in Disciplinary Proceedings, 42 B.C. L. Rev. 653, 683-84 (2001).

A student who is found guilty at a university disciplinary hearingsuffers more than just a suspension or expulsion from school.... Students who are expelled from college face a permanentlydamaging student record, debilitating debt, hopelessness, and,without a college degree, difficulty finding decent-paying jobs. Finally, university disciplinary hearings threaten accused studentswith both immediate and lasting punishment.

Matloff, 35 Suffolk U. L. Rev. at 184.

In the memorable words of one federal appellate judge:

Expulsion is the “capital punishment” of university discipline. Ifind it incredible that the University would expel a student doingsatisfactory or superior work in each of his courses for peacefulconduct in protest of national policy.

Herman v. University of South Carolina, 457 F.2d 902, 903 (4th Cir. 1972) (Craven, dissenting).

Likewise, Mr. McConnell’s student paper was a peaceful protest of New York policy

which mandates multiculturalism and bans corporal punishment. No doubt, defendants’ action in

expelling him was “aimed at keeping subversives out of the teaching ranks,” Keyishian v. Board

of Regents of University of State of New York, 385 U.S. at 602, 87 S.Ct. at 683, but it was no

more justifiable than firing professors from New York colleges forty years ago because they

18 CPLR 7806 provides in pertinent part: “Any restitution or damages granted to the petitionermust be incidental to the primary relief sought by the petitioner, and must be such as he mightotherwise recover on the same set of facts in a separate action or proceeding suable in thesupreme court against the same body or officer in its or his official capacity.”

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refused to take the anti-Communist loyalty oath struck down in Keyishian.

POINT II

THE COURT CAN GRANT PLAINTIFF ARTICLE 78 RELIEFIN THIS HYBRID PROCEEDING

A. Combining Civil Rights Claims and Article 78 Relief in ThisHybrid Action is Perfectly Proper

CPLR 7806 limits damage claims to those “incidental” to the relief sought by way of

certiorari, mandamus or prohibition.18 CPLR 7801. The begs the question about the meaning of

“incidental.” As Prof. Alexander explains in the official Commentary on the statute:

An issue that has generated controversy is the extent to whichdamages may be awarded in an Article 78 proceeding. CPLR 7806states that monetary restitution or damages must be “incidental tothe primary relief sought by the petitioner.”

* * * * *

The restoration of lost salary is a recoverable form of “incidental”relief in an Article 78 proceeding by a discharged employee whoseeks reinstatement to his government job. The Court of Appealshas now made clear, however, that in such proceeding, damages forviolation of the employee's civil rights (42 U.S.C.A. § 1983) arenot "incidental to the primary relief sought" (CPLR 7806). Parkerv. Blauvelt Volunteer Fire Company, 1999, 93 N.Y.2d 343, 690N.Y.S.2d 478, 712 N.E.2d 647. Civil rights claims for damagesfor embarrassment, loss of reputation and mental anguish “do notseek the restoration of any economic benefits derivable from [theemployee's] status as a member of the [government office].” Id. at348, 690 N.Y.S.2d at 482, 712 N.E.2d at 348. In the Parkerlitigation, therefore, the Supreme Court's severance ... of theemployee's civil rights claims in his Article 78 proceeding was

19 For this reason, Paragraph 49 of the verified complaint states:

Plaintiff’s claim for equitable reinstatement under CPLR 7803(3)is timely pursuant to CPLR 217(1), and presented in combinationwith this plenary action for damages because CPLR 7806 limitsdamages to those “incidental to the primary relief sought by thepetitioner,” and claims arising in tort and § 1983 have been deemednot “incidental” to Article 78 relief.

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proper.

McKinney’s Commentaries, § 7806:1.

However, the law is not entirely clear. On the one hand, civil rights attorney's fees under

42 U.S.C. § 1988 were held to be recoverable in an Article 78 proceeding. Johnson v. Blum,

1983, 58 N.Y.2d 454, 457, 461 N.Y.S.2d 782, 783, 448 N.E.2d 449, 450 (1983). On the other

hand, “in the usual civil rights action the damages requested cannot be characterized as

incidental.” Mitchell v. Fishbein, 377 F.3d 157 (2d Cir. 2004), relying on Parker v. Blauvelt

Volunteer Fire Co., 93 N.Y.2d 343, 347-49, 690 N.Y.S.2d 478, 481-82, 712 N.E.2d 647 (1999);

Murphy v. Capone, 1993, 191 A.D.2d 683, 595 N.Y.S.2d 526 (2d Dep't., 1993) (tort damages for

loss of economic advantage and injury to reputation do not qualify as incidental damages in a

physician's Article 78 proceeding for restoration of hospital privileges.); Antonsen v. Ward, 943

F.2d 198, 204 (2d Cir. 1991) (damages for emotional pain and suffering are not incidental to a

claim for reinstatement and back pay previously granted in Article 78 proceeding).19

Accordingly, plaintiff’s civil rights and tort claims were combined in this hybrid proceeding for

Article 78 relief.

B. The Court Should Grant Plaintiff’s Article 78 Relief atThis Time

The law is clear that the Court may grant relief under CPLR 7803(3) without severing

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that claim from the non-incidental claims in this action. Heimbach v. Mills, 54 A.D.2d 982, 982-

83, 389 N.Y.S.2d 24, 26 (2d Dept., 1976) (“It is our view that a proper exercise of discretion

required that the proceeding be treated as a hybrid one for both article 78 and declaratory relief”);

Bennett v. Wells College, 219 A.D.2d 352, 641 N.Y.S.2d 929 (4th Dept., 1996) (hybrid action for

Article 78 relief and common law claims, granting relief to professor denied tenure because

“respondent is obligated to follow its own rules in the tenure review process” citing Tedeschi);

Adams v. Welch, 272 A.D.2d 642, 707 N.Y.S.2d 691 (3d Dept., 2000) (hybrid Article 78

proceeding and civil action); City of Syracuse v. Comerford, 13 A.D.3d 1109, 787 N.Y.S.2d 788

(4th Dept., 2004) (same); Bridgeview Garden Apartments LLC v. New York State Div. of Housing

and Community Renewal, 2004 WL 2059552, 5, 2004 N.Y. Slip Op. 51001(U) (Richmond Cnty.,

2004) (same); Perry Thompson Third Co. v. City of New York, 279 A.D.2d 108, 718 N.Y.S.2d

306 (1st Dept., 2000) (same); Concerned Citizens of Perinton, Inc. v. Town of Perinton, 261

A.D.2d 880, 689 N.Y.S.2d 812 (4th Dept., 1999) (same); Otto v. New York State Adirondack

Park Agency, 252 A.D.2d 898, 676 N.Y.S.2d 330 (3d Dept., 1998); (same); Jenkins v. State Div.

of Housing and Community Renewal, 264 A.D.2d 681, 695 N.Y.S.2d 563 (1st Dept., 1999)

(same); Village of Scarsdale v. Jorling, 229 A.D.2d 101, 653 N.Y.S.2d 935 (2d Dept.,1997)

(same); West 90S/West 100S Neighborhood Coalition, Inc. v. Surles. 205 A.D.2d 461, 613

N.Y.S.2d 908 (1st Dept., 1994); (same); 425 Merchants Road, Inc. v. Leach, 92 A.D.2d 719, 461

N.Y.S.2d 111, (4th Dept., 1983) (same).

Notably, there are numerous examples of hybrid proceedings where the plaintiff sought

Article 78 relief and alleged a violation of civil rights. Beers v. Incorporated Village of Floral

Park, 262 A.D.2d 315, 315, 691 N.Y.S.2d 546, 547 (2d Dept., 1999) (hybrid proceeding for

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Article 78 relief and to recover damages under 42 U.S.C. §§ 1983); Auguste v. Hammons, 285

A.D.2d 417, *417, 727 N.Y.S.2d 880 (1st Dept.,. 2001) (same); Pokoik v. Department of Health

Services, County of Suffolk, 237 A.D.2d 368, 657 N.Y.S.2d 56 (2d Dept., 1997) (same); Miller v.

DeBuono, 235 A.D.2d 480, 652 N.Y.S.2d 313, (2d Dept., 1997); Cappelli v. Sweeney, 167

Misc.2d 220, *222, 634 N.Y.S.2d 619 (N.Y. Cnty., 1995) (same); Tyson v. New York State Dept.

of Correctional Services, 198 A.D.2d 408, 604 N.Y.S.2d 130, (2d Dept., 1993) (same); Robinson

v. Perales, 166 A.D.2d 594, 560 N.Y.S.2d 881 (2d Dept., 1990) (same); Jansen Court

Homeowners Ass'n v. City of New York, 2005 WL 901952, 1 (2d Dept., 2005) (same); Abrishami

v. Board of Trustees of Inc. Village of East Hills, 16 A.D.3d 410, 790 N.Y.S.2d 401, 402 (2d

Dept., 2005) (same); Korn v. Gulotta, 186 A.D.2d 195, 196, 587 N.Y.S.2d 960, 961 (2d Dept.,

1992).

To the extent the Court believes that relief under CPLR 7803(3) should be addressed

separately, it may sever that claim for equitable relief. CPLR 103(c); EMP of Cadillac, LLC v.

Assessor of Village of Spring Valley, 789 N.Y.S.2d 522, 524 (2d Dept., 2005) (“converting this

action ... to a proceeding pursuant to CPLR article 78 in the nature of a mandamus to compel the

defendant to comply with the consent judgment (see CPLR 103(c)”); Held v. Hall, 190 Misc.2d

444, 453, 737 N.Y.S.2d 829, 835-36 (West. Cnty., 2002) (“the Court shall convert plaintiffs' ...

action to a CPLR Article 78 proceeding in the nature of mandamus, and their summons and

complaint shall be deemed a notice of petition and petition.”); Cornell University v. Bagnardi,

107 A.D.2d 398, 403, 486 N.Y.S.2d 964, 968 (3d Dept., 1985) (“As a final procedural matter, we

note that the Board's determination denying plaintiff's application for a use variance, based upon

the requirement of a showing of hardship which we have declared invalid, is irrational and

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should be annulled. To accomplish this result, we convert the remaining portion of this action to

a CPLR article 78 proceeding (CPLR 103[c] ).”); Altona Citizens Committee, Inc. v. Town of

Altona, 77 A.D.2d 954, 430 N.Y.S.2d 894, 896 (3d Dept., 1980) (“Special Term recognized the

"hybrid" character of the instant proceeding which seeks relief not available in an article 78

proceeding. However, this court is free ... to convert the proceeding into an action (CPLR 103,

subd. (c); Matter of Friedman v. Cuomo, 39 N.Y.2d 81, 382 N.Y.S.2d 961, 346 N.E.2d 799;

Siegel, New York Practice, s 4, p. 5)”).

However, as hybrid actions are common, especially where civil rights are at issue,

severing plaintiff’s Article 78 relief exalts form over substance and serves no practical purpose,

as there are no facts reasonably in dispute, and expedited discovery is not needed to decide this

motion which can be determined on the submissions of the parties. City of Syracuse v.

Comerford, 2003 WL 22471176, 1 (Onondaga Cnty., 2003) (denying defendants’ “application

for dismissal of the petition on the ground that petitioner has improperly commenced a ‘hybrid

proceeding’”); Bridgeview Garden Apartments LLC v. New York State Div. of Housing and

Community Renewal, 2004 WL 2059552, 5 (N.Y.Sup.), 2004 N.Y. Slip Op. 51001(U) (N.Y.Sup.,

2004) (“[T]here is authority for a court to convert an Article 78 proceeding into sort of a hybrid

proceeding and action allowing simultaneous review of a challenged agency action and

consideration of an award [of damages on non-equity claims].”); Karedes v. Colella, 187 Misc.2d

656, 662, 722 N.Y.S.2d 714, 718 (West. Cnty., 2001) (Since the parties thereto, petitioner and

the Village, are jurisdictionally before the court, and each (in one way or another) has asked for a

determination as to the legality and enforceability of the contract, to the court's view that can be

accomplished--thus saving the parties the time and expense of yet another lawsuit over basically

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the same issue--were petitioner's article 78 proceeding, insofar as it deals with the validity of the

contract, to be converted to an action for a declaratory judgment on the issues raised [CPLR 103-

c]”).

Conclusion

It cannot be gainsaid that, “[b]ecause colleges and universities perform an essential

function in a democratic society and because they have been given a position of esteem, trust and

responsibility, they must, in return, treat students fairly, with equal dignity, care and concern.”

Tenerowicz, 42 B.C. L. Rev. at 685.

Defendants did not treat plaintiff with dignity, care and concern, but instead, abused their

power and arbitrarily and capriciously expelled him to punish him for expressing certain views

about education policy in flagrant violation of Le Moyne’s state-mandated conduct code and due

process procedures. Defendants were so brazen they did not even pretend to abide by the

“rudimentary elements of fair play,” Dixon v. Alabama, 294 F.2d at 159, and unabashedly

violated their own conduct code which prohibits the “Intentional or reckless interference with the

freedom of expression of others.” [See, Verified Complaint at ¶¶ 41-42.]

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Accordingly, the Court should grant plaintiff's motion for temporary reinstatement as a

graduate student at Le Moyne College pending the outcome of this litigation.

Dated: New York, New York

May 20, 2005

Law Offices of Samuel A. Abady and Associates, P.C.

Lead Counsel for Scott McConnell

By:___________________________________________

Samuel A. Abady

216 East 49th Street - 5th Floor

New York, New York 10017

(212) 339-8600