Student due process case probably headed for state Court of Appeals

This case out of the Appellate Division looks at the due process rights of students who are accused of sexual misconduct at public universities. Since this case was decided by a 3-2 vote, it is sure to wind up in the New York Court of Appeals.

The case is In the Matter of Bursch v. SUNY Purchase, decided on September 19. After Bursch was charged with having nonconsensual sex with a student while she was under the influence of alcohol, the school scheduled a disciplinary hearing before a school-designated hearing board. The college told Bursch the hearing would take place on October 7, 2014 at 9:00 a.m. After Bursch got a lawyer and belatedly completed the FERPA forms that allowed the school to communicate with this attorney, the lawyer asked the school to schedule the hearing for noon that day because of a prior commitment. The school rejected that request because of witness availability. As a result, when the hearing proceeded on the morning of October 7, Bursch's lawyer was not present to advise Bursch (lawyers are not allowed to actually litigate at these hearings), and the charges were sustained, resulting in Bursch's expulsion from school.

The due process challenge is rejected. The majority rules that while the student handbook allows students to request a one-time extension of the hearing, that provision is nowhere to be found in the record and, in any event, this provision simply gives you the right to request an extension without actually changing the hearing date. Given the logistical difficulties in scheduling the hearing (lining up witnesses, judges, etc.) and the last minute request for an adjournment, it was not arbitrary and capricious for the college to deny the adjournment request. Moreover, due process does not require the college anything more than an opportunity to present a defense, the names of witnesses and written notice of the ruling. You have no right to a lawyer at these hearings, and as the attorney can only advise you at the hearing.

Two justices dissent. The justices summarize their reasoning this way:

The respondent Purchase College of the State University of New York (hereinafter Purchase) violated the petitioner’s right to due process and abused its discretion when it denied his timely request for a three-hour adjournment of the administrative hearing so that his attorney could attend. Given the gravity of the administrative charges facing the petitioner, and the threat of additional criminal charges stemming from an active police investigation, the petitioner’s right to secure the assistance of his designated attorney at the administrative hearing was fundamental. This right was wrongfully extinguished by Purchase when it summarily refused to accommodate the petitioner’s request for this exceedingly minimal delay.

This case should not be analyzed as if it involved a routine application for an adjournment in a proceeding before the Department of Motor Vehicles. Aside from the punishment of expulsion, which effectively ended the petitioner’s pursuit of higher education, the petitioner faced the prospect of serious criminal charges that could have resulted in a significant prison sentence. In light of the potential impact of the administrative hearing, the failure to grant a three hour adjournment was no ordinary administrative determination with consequences confined to the administrative realm, but a decision which deprived the petitioner of his right to due process. Every participant in an administrative proceeding is entitled to be treated fairly and in accordance with due process, regardless of the nature of the charges lodged against them. Accordingly, we must respectfully dissent.

State appellate practitioners know that 3-2 cases are ripe for review by the Court of Appeals, as the two dissenters are allowed to certify the case for review by that court. That is probably where this case is going.