Opinion
DOCKET NO. A-1679-13T4 DOCKET NO. A-1680-13T4
01-25-2016
JEDEDIAH ROCKWELL, Appellant, v. WILLIAM PATERSON UNIVERSITY, Respondent. KRISHANI NADARAJAH, Appellant, v. WILLIAM PATERSON UNIVERSITY, Respondent.
Iaciofano & Perrone, attorneys for appellants (Carl A. Perrone, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher Huber, Deputy Attorney General, on the briefs).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Leone and Higbee. On appeal from William Paterson University. Iaciofano & Perrone, attorneys for appellants (Carl A. Perrone, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher Huber, Deputy Attorney General, on the briefs). PER CURIAM
Appellants Jedediah Rockwell and Krishani Nadarajah filed separate appeals challenging their disciplinary hearing before the University Hearing Board (UHB) of the William Paterson University of New Jersey (WPU). We listed their appeals back-to-back, and now consolidate them only for the purposes of this opinion. We affirm.
I.
On April 29, 2013, S.B., a student at WPU, reported "cult like" activity to the WPU police department. In the police reports created during an investigation of her claims, S.B. alleged as follows.
Approximately five weeks earlier, S.B. met another WPU student, M.M. The two began casually dating. As a result, S.B. began associating with M.M.'s group of friends.
In early April 2013, S.B. was present at a small gathering in a dorm room with a group including M.M., Rockwell, Nadarajah, and two other students. At the gathering, the group told S.B. about demons and spirits, and explained to S.B. that they had "alters," which were a form of alter egos. These "alters" would take hold of members of the group without warning. During this gathering, Nadarajah switched to one of her "alters" and began having a seizure and foaming at the mouth.
After witnessing this encounter, S.B. told M.M. that she wanted to leave the group and that she was concerned about the mental health of all of its members. In response, M.M. told S.B. that no one would believe her and that she was "crazy." Shortly thereafter, appellants, M.M., and others began to convince S.B. that she was possessed by a spirit named "Olivia," who the group claimed was raped as a young adult and also had sexually assaulted and baby-sat Rockwell.
In mid-April 2013, S.B. was placed on "lock-down" in Nadarajah's dorm room. During the lock-down, S.B. was escorted to use the bathroom and get food, and was not permitted to take her asthma medication or sleep in her own dorm room. On numerous occasions, S.B. tried to escape Nadarajah's dorm room, but she was tackled and dragged back into the room by various members of the group. Members of the group, including appellants, continued telling S.B. that she was possessed by "Olivia," and convinced S.B. that the lock-down was for her own good in order to rid her of the demonic spirit. In an attempt to free S.B. of the possession, Nadarajah repeatedly slapped S.B. in the face, and Rockwell slapped S.B. and placed his hands around S.B.'s throat.
At the end of the lock-down, appellants, M.M., and others attempted to perform an exorcism on S.B. on WPU's outdoor volleyball court. During this exorcism, members of the group chanted in Latin and splashed Holy Water on S.B.'s face in order to rid her of "Olivia." At the end of the exorcism, the group told S.B. that she was no longer possessed.
In late April 2013, M.M. convinced S.B. that she was again possessed, but this time by an "Eastern European sex slave" named "Violet." S.B. would switch to this "alter" periodically and call Nadarajah "mistress" and M.M. "master."
The WPU police department conducted a thorough investigation of S.B.'s allegations and interviewed every member of the group, including appellants. During the investigation, some members of the group confirmed that members of the group had "alters" and would routinely switch personalities. Other members denied the existence of "alters," but instead alleged that the group would engage in "Live Action Role Playing" (LARPing), which involved members of the group acting out different scenarios as part of a game. Almost every member of the group confirmed that some "rough housing" occurred on a fairly regular basis. In addition, one member of the group confirmed S.B.'s allegation that Nadarajah had slapped her on several occasions.
During Rockwell's interview, he denied the existence of "alters" and that he had witnessed any violence between members of the group. Rockwell did admit that there was some "rough housing," and that some of his friends would act out certain "Anime" shows or video games, but he assumed everyone involved knew this was just "fun and games." Rockwell stated that it would get "somewhat physical" with S.B., but that it was nothing more than "a little slap to the face."
When asked about the "lock-down," Rockwell stated that S.B. had stayed in his dorm room one night during the week in which S.B. alleged the lock-down occurred. Rockwell said he thought S.B. was having issues with her roommate.
Nadarajah was given and waived her Miranda warnings during her interview. Nadarajah indicated that she believed S.B. was a "pathological liar that does not know how to act in certain social situations." When asked specifically about S.B.'s allegations, Nadarajah stated that her memory was "not good" because of her epilepsy. Nonetheless, Nadarajah denied any wrongdoing.
Miranda v. Arizona, 384 U.S. 435, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Nadarajah stated that the group of friends will sometimes "rough house," but that it never escalated to "punches, kicks, hair pulling, or anything else beyond the occasional wrestling match." Nadarajah denied slapping any of her friends, including S.B. In addition, Nadarajah denied placing S.B. on "lock-down." When asked about the "alters," Nadarajah insisted that the "alters" were just characters employed during the group's role playing sessions.
The WPU police department also interviewed M.M., who denied any wrongdoing but admitted that the group usually "rough housed" and engaged in LARPing. M.M. alleged that S.B. was very "clingy," and that she engaged in self-mutilation and often spoke about hurting herself. M.M. denied any acts of violence by any member of the group towards S.B.
Following the WPU police department's investigation, the case was referred to Jennifer Tumlin, WPU's Director of Judicial Affairs & Dispute Resolution. Five students were charged, including appellants. In September 2013, appellants each received "Hearing Board Notice" letters from Tumlin. The letters informed appellants that they had been charged with the following violations of the Student Code of Conduct found in the Student Handbook:
L. Assault, physical abuse, verbal abuse, threats, intimidation, harassment, stalking, bullying, cyber bullying, coercion and/or other conduct that threatens or endangers the health or safety of any person. ("Assault")
M. Disorderly conduct as defined by the laws of the State of New Jersey. ("Disorderly Conduct")
S. Hazing, including organizing, engaging in, facilitating, or promoting any conduct that places or may place another person in danger of bodily harm or serious psychological distress. ("Hazing")
Appellants retained counsel who demanded certain due process protections and was present as their advisor at the October 11, 2013 hearing. At the hearing, the UHB heard testimony from the five accused students, two additional students, and WPU Detective-Sergeant Michael Arp who read the police reports into the record. At the hearing, Rockwell acknowledged that he had slapped S.B. to "drive out an evil spirit from her." However, he argued that if he had slapped S.B. it "would not have been a slap that even made a sound." Rockwell denied placing S.B. on "lock-down," but admitted that the group did conduct some kind of exorcism or "meditation session."
At the hearing, Nadarajah again denied ever slapping S.B. or any other member of the group. Nadarajah also denied placing S.B. on "lock-down" and "coaching" S.B. on how to sexually stimulate a partner. However, Nadarajah conceded that she can take on an "aggressive role" where she would be "yelling, at times."
On October 11, 2013, Francisco Diaz, the Hearing Officer, sent separate letters to appellants indicating the UHB's findings. The UHB found both appellants not responsible for "Disorderly Conduct." The UHB found Rockwell responsible for "Hazing" but not responsible for "Assault." As a result, Rockwell was released from his housing contract for the period from October 21, 2013, to September 1, 2014. This required Rockwell to move out of his residence hall and barred him from entering any residence hall during that period. In addition, Rockwell was placed on Disciplinary Probation effective October 11, 2013, to September 1, 2014.
The UHB found Nadarajah responsible for "Assault" and "Hazing." As a result, Nadarajah was suspended from October 21, 2013, to September 1, 2014. This resulted in Nadarajah being dropped from her current courses, and prohibited her from entering the WPU campus during this period.
The letters also advised appellants that they had three business days from their receipt of Diaz's letter to appeal the UHB's decision to Dr. John Martone, Vice President for Student Development. Both appellants separately sent appeal letters to Dr. Martone.
On October 28, 2013, Dr. Martone separately responded to appellants' appeal letters. Dr. Martone wrote each appellant that he found there was "no basis for [the] appeal of the sanctions based on severity of sanctions or procedural due process." However, Dr. Martone delayed the release of Rockwell from his housing contract until the end of the fall 2013 semester, and changed his "probation as it relates to housing" to run from "January 2013 until January 2014." Dr. Martone also adjusted the sanctions imposed on Nadarajah to run from January 1, 2014, until January 1, 2015, in order to "permit [Nadarajah] to complete this semester with no loss of academic progress or financial penalty for [her] actions."
It appears this was a typographical error in Dr. Martone's October 28, 2013 letter, and that Rockwell's exclusion from on-campus housing ran from January 2014 until January 2015.
II.
On December 10, 2013, both Rockwell and Nadarajah filed notices of appeal in this court. The notices of appeal stated they were appealing a "State Agency Decision." Rule 2:2-3(a)(2) provides that "appeals may be taken to the Appellate Division as of right . . . to review final decisions or actions of any state administrative agency or officer[.]" Neither party challenges the jurisdiction of this court under Rule 2:2-3(a)(2). However, we may consider jurisdiction sua sponte since "a court cannot hear a case as to which it lacks subject matter jurisdiction even though all parties thereto desire an adjudication on the merits . . . .'" Peper v. Princeton Univ. Bd. of Trs., 7 7 N.J. 55, 65-66 (1978).
WPU is a State college under Chapter 64 of Title 18A, N.J.S.A. 18A:64-1 to -93. See N.J.S.A. 18A:64-45. However, it is less clear whether WPU's decision here is a decision of a "State administrative agency" for the purposes of Rule 2:2-3(a)(2).
We note that while Rule 2:2-3 "vests the Appellate Division with exclusive jurisdiction" over decisions for state administrative agencies, Prado v. State, 186 N.J. 413, 422 (2006), there have been instances in which students have challenged the disciplinary actions of state universities by filing complaints seeking monetary damages in the Law Division. See, e.g., Mittra v. Univ. of Med. & Dentistry of N.J., 316 N.J. Super. 83, 85-86 (App. Div. 1998).
The only appellate case that has decided whether Rule 2:2-3(a)(2) applies to a decision of a State college or university involved Rutgers, the State University of New Jersey. In Shim v. Rutgers, 191 N.J. 374 (2007), our Supreme Court stated that given "Rutgers's status as 'an instrumentality of the State for the purpose of providing public higher education,' it is clear that an appeal from a final decision by Rutgers in respect of a student's domicile must lie in the Appellate Division pursuant to R. 2:2-3(a)(2)." Id. at 383 n.4 (quoting Lipman v. Rutgers, 329 N.J. Super. 433, 441 (App. Div. 2000)). "When Rutgers attempts to determine whether a student is domiciled in New Jersey, it acts much like an administrative agency." Lipman, supra, 329 N.J. Super. at 441.
The Legislature has expressly designated Rutgers as "the instrumentality of the state for the purpose of operating the state university." N.J.S.A. 18A:65-2; see N.J.S.A. 18A:65-35.
The Supreme Court has also held that Rutgers "is a public agency for purposes of Rule 4:3-2(a)" concerning venue, Fine v. Rutgers, 163 N.J. 464, 465, 467 (2000), and is an arm of the State for some other purposes, Sussex Commons Assocs., LLC v. Rutgers, 210 N.J. 531, 543 (2012). However, "courts have not adopted a bright-line rule that treats Rutgers as an arm of the State for all purposes." Ibid. "[I]n other contexts courts have not accorded Rutgers the status of a state agency." Fine, supra, 163 N.J. at 470.
Most pertinently, the Legislature has declared that Rutgers "university shall be . . . given a high degree of self-government, [which] shall be free of partisanship." Sussex Commons, supra, 210 N.J. at 542 (alterations in original) (quoting N.J.S.A. 18A:65-27(I)(a)). This reflects the Legislature's "overriding concern for the academic freedom" of Rutgers. Id. at 542-43 (quoting In re Determination of Exec. Comm. on Ethical Standards (Exec. Comm.), 116 N.J. 216, 223 (1989)). "All of this independence accords with the idea of a university as 'guilds of scholars . . . responsible only to themselves.'" Exec. Comm., supra, 116 N.J. at 224 (quoting Snitow v. Rutgers Univ., 103 N.J. 116, 122 (1986)). "'"[T]he four essential freedoms" of a university' have been said to include the freedom 'to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.'" Ibid. (quoting Snitow, supra, 103 N.J. at 122); see Regents of Univ. of Michigan v. Ewing, 474 U.S. 214, 226 n.12, 106 S. Ct. 507, 514 n.12, 88 L. Ed. 2d 523, 533 n.12 (1985).
Although the State colleges do not have Rutgers' unique history dating back to 1766, the Legislature has been equally concerned with the academic freedom of the State colleges. In the same act which confirmed Rutgers' self-government, the Legislature enacted Chapter 64 regarding the State colleges. L. 1967, c. 271. The Legislature similarly declared "that it is in the best interest of the State that the State colleges shall be and continue to be given a high degree of self-government and that the government and conduct of the colleges shall be free of partisanship." N.J.S.A. 18A:64-1.
"The Legislature f[ound] further that a decentralization of authority and decision-making to the boards of trustees and administrators of the State colleges will enhance the idea of self-government." Ibid. The Legislature provided that "[t]he government, control, conduct, management and administration of each of the colleges shall be vested in the board of trustees of the college," just as such responsibilities are vested in the Rutgers board of governors and board of trustees. N.J.S.A. 18A:64-2; see N.J.S.A. 18A:65-24. The Legislature further vested the board of trustees of the State colleges, like the Rutgers boards, with
the powers, rights and privileges that are incident to the proper government, conduct and management of the college, and the control of its properties and funds and such powers granted to the college or the board or reasonably implied, may be exercised without recourse or reference to any department or agency of the State, except as otherwise provided by this article or applicable law.Moreover, the Legislature gave the State colleges' boards, like the Rutgers' boards, the power to "promulgate such rules, regulations and orders, not inconsistent with the provisions of this article, that are necessary and proper for the administration and operation of the college and the carrying out of its purposes[.]" N.J.S.A. 18A:64-6(m); see N.J.S.A. 18A:65-29. Thus, the Legislature has made clear that the State Colleges have a similar level of academic autonomy as Rutgers.
[N.J.S.A. 18A:64-7; see N.J.S.A. 18A:65-28.]
Based on similar "legislative and judicial recognitions," the Chancery Division has found that the UMDNJ cannot be held to be a state administrative agency within the meaning of R. 2:2-3(a)(2)" and that "the independent, autonomous nature of the UMDNJ removes this action from the ambit of R. 2:2-3." Cohen v. Bd. of Trs. of Univ. of Med. & Dentistry of N.J., 240 N.J. Super. 188, 195 (Ch. Div. 1989).
Moreover, in addressing whether Jersey City State College (JCSC) was a state agency, our Supreme Court "recognize[d] that a State university is not considered the State for all purposes." N.J. Educ. Facilities Auth. v. Gruzen P'ship, 125 N.J. 66, 73 (1991). "In deciding such cases, we reflect on the fundamental purposes of the relevant laws or doctrines and the reasons we believe would best accord with the measure of independence the Legislature would intend to give to the State-university system." Id. at 74. "Consideration of that independence is especially important in light of the first-amendment concern for academic freedom." Ibid. Because Gruzen concerned whether JCSC's suit for defective design and construction of a college building was time-barred, and because creating "the bricks and mortar of education, does not raise the concern for the needed educational independence that warrants distinct treatment from the State," the Court saw "no reason why JCSC should not be considered a State agency for this purpose." Id. at 68, 73-74; see Rutgers v. Grad P'ship, 269 N.J. Super. 142, 151 (App. Div. 1993) ("find[ing] no difference between Jersey City State College and Rutgers" for that purpose), certif. denied, 135 N.J. 470 (1994).
By contrast, the appeals before us arguably implicate the freedom of a university to determine who may be admitted to study, as they involve the disciplinary proceedings determining whether the students' admission to study should be suspended or revoked. University student disciplinary proceedings are part of a university's ability to govern itself. Courts "'are reluctant to encourage further bureaucratization by judicializing university disciplinary proceedings, mindful also that one dimension of academic freedom is the right of academic institutions to operate free of heavy-handed governmental, including judicial, interference.'" Medlock v. Trs. of Ind. Univ., 738 F.3d 867, 871 (7th Cir. 2013) (citation omitted).
However, absent further guidance from our Supreme Court, we analogize to Shim and hold that an appeal from a final decision by a State college in respect of a student's discipline may be brought in the Appellate Division pursuant to Rule 2:2-3(a)(2). See Shim, supra, 191 N.J. at 383 n.4.
Nonetheless, the concern for the freedom and self-government of our universities amplifies the deferential nature of our review. For a truly administrative issue such as the domicile decision raised in Shim, an appellate court's "role in reviewing an administrative agency's final decision is limited." Shim, supra, 191 N.J. at 384. An appellate court "will not reverse an agency's decision unless: (1) it was arbitrary, capricious, or unreasonable; (2) it violated express or implied legislative policies; (3) it offended the State or Federal Constitution; or (4) the findings on which it was based were not supported by substantial, credible evidence in the record." Ibid. "This deference is afforded because we recognize the separate functions with which agencies are legislatively instilled," and because "some agencies exercise a technical expertise that is not possessed by the courts." Lipman, supra, 329 N.J. Super. at 441-44 (extending such deference to the administrative domicile decision). In student disciplinary decisions, we believe even more firmly that "universities are entitled to deference in some of their internal decisions." Id. at 442. We must hew to that standard of review.
III.
Appellants seek to "reverse the discipline imposed." Specifically, Rockwell seeks reversal of WPU's releasing him from his housing contract and placing him on Disciplinary Probation. Nadarajah seeks reversal of her suspension from WPU. However, those disciplinary sanctions expired on January 1, 2015. There is no indication in the record that those sanctions were stayed pending the outcome of this appeal. As it appears appellants' suspensions have already been completed, appellants' challenge to the imposition and length of those sanctions are now moot. For reasons of judicial economy and restraint, "courts will not decide [issues] in which . . . a judgment cannot grant effective relief." N.J. Div. of Youth & Family Servs. v. W.F., 434 N.J. Super. 288, 297 (App. Div.) (quoting Cinque v. N.J. Dep't of Corr., 261 N.J. Super. 242, 243 (App. Div. 1993)), certif. denied, 218 N.J. 275 (2014).
The only remaining remedy sought by appellants is removal of the Student Code of Conduct violations from their student records. That issue is not moot. School disciplinary charges of misconduct, if sustained and recorded in students' school records, "could seriously damage the students' standing with their fellow pupils and their teachers as well as interfere with later opportunities for higher education and employment." Goss v. Lopez, 419 U.S. 565, 74-75, 95 S. Ct. 729, 736, 42 L. Ed. 2d 725, 735 (1975). Therefore, we consider whether appellants have shown a basis to vacate their violations.
IV.
Appellants claim WPU failed to provide the requisite procedural due process before finding they violated the Student Code of Conduct. The Fourteenth Amendment to the United States Constitution provides that no state shall "deprive any person of life, liberty, or property, without due process of law[.]" U.S. Const. amend. XIV. "Article I, paragraph 1 of the New Jersey Constitution does not enumerate the right to due process, but protects against injustice and, to that extent, protects 'values like those encompassed by the principle[] of due process.'" Doe v. Poritz, 142 N.J. 1, 99 (1995) (citation omitted).
The central case regarding due process and student discipline is the United States Supreme Court's decision in Goss. Goss, supra, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725; see State in Interest of T.L.O., 94 N.J. 331, 339-40 (1983), rev'd on other grounds, 469 U.S. 325, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985); Hernandez v. Don Bosco Preparatory High, 322 N.J. Super. 1, 15-16 (App. Div.), certif. denied, 162 N.J. 196 (1999). Goss held that if a State provides and makes compulsory a public high school education, "the State is constrained to recognize a student's legitimate entitlement to a public education as a property interest which is protected by the Due Process Clause and which may not be taken away for misconduct without adherence to the minimum procedures required by that clause." Goss, supra, 419 U.S. at 573-74, 95 S. Ct. at 737, 42 L. Ed. 2d at 734-35.
It is unclear whether a student has a protected property interest in continued enrollment in a public university. Compare Williams v. Wendler, 530 F.3d 584, 589 (7th Cir. 2008), with Flaim v. Med. College of Ohio, 418 F.3d 629, 633 (6th Cir. 2005). However, WPU concedes that, as a state institution of higher education, it must comply with the strictures of the Due Process Clause of the Fourteenth Amendment. See Hernandez, supra, 322 N.J. Super. at 17 (noting that "[p]ublic universities afford constitutional due process in disciplining students"). Based on that concession, we proceed to consider appellants' claims. See Regents of Univ. of Michigan, supra, 474 U.S. at 223, 106 S. Ct. at 512, 88 L. Ed. 2d at 530-31.
In Goss, the Court held that high school "[s]tudents facing temporary suspension qualifying for protection of the Due Process Clause, and due process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have[.]" Id. at 581, 95 S. Ct. at 740, 42 L. Ed. 2d at 739. "All that Goss required was an 'informal give-and-take' between the student and the administrative body dismissing him that would, at least, give the student 'the opportunity to characterize his conduct and put it in what he deems the proper context.'" Bd. of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 85-86, 98 S. Ct. 948, 953, 55 L. Ed. 2d 124, 132 (1978) (quoting Goss, supra, 435 U.S. at 584, 95 S. Ct. at 729, 42 L. Ed. 2d at 725). The Court in Goss "stop[ped] short of construing the Due Process Clause to require, countrywide, that hearings in connection with short suspensions must afford the student the opportunity to secure counsel, to confront and cross-examine witnesses supporting the charge, or to call his own witnesses to verify his version of the incident." Goss, supra, 419 U.S. at 583, 95 S. Ct. at 740, 42 L. Ed. 2d at 740.
However, the Court in Goss added that "[l]onger suspensions or expulsions for the remainder of the school term, or permanently, may require more formal procedures." Id. at 583-84, 95 S. Ct. at 741, 42 L. Ed. 2d at 740. Thus, we must address how much process was due for the suspensions here, including the suspension of Nadarajah from WPU for one year.
To determine what procedural protections are required in a given case, the following factors must be weighed:
[F]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
[Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18, 33 (1976); accord Doe, supra, 142 N.J. at 107.]
A.
WPU states that it afforded appellants specified due process protections that exceeded those required by Goss. The WPU Student Handbook provides that "[i]t has been recognized that due process in higher education disciplinary matters does not parallel the requirements of due process in a court of law. However, [WPU] ensures that fundamental requirements of due process in all disciplinary matters will be implemented." The WPU Student handbook states that these "fundamental requirements" include the following:
1. Accused students will be notified via their [WPU] email account of charges within a reasonable time period.
2. Notification via the accused students [sic] [WPU] email address of the date, time, and place of the hearing at least three days in advance.
3. Notification of charges will be sent in writing when email notification has failed, in cases that may result in suspension or expulsion from the University or in instances deemed appropriate by the Vice President of Student Development.
4. The opportunity to present evidence and witnesses.
5. Written notification of findings and sanction or penalties imposed.
6. Written notification of an appeal process.
Moreover, in cases being addressed by the UHB:
Upon receipt of serious charges to be brought before the [UHB], the Vice President of Student Development or designee will direct, in writing, the student being charged to appear at a specified time and place to attend a pre hearing investigation
meeting. The student will receive written, detailed charges of alleged violations of the Code of Conduct. The student will also receive a copy of the evidence that will be used against him/her in a hearing. The student will have the opportunity to give additional information that may be presented to the [UHB] for review during the hearing.
Appellants argue that WPU failed to provide all the protections listed in the WPU Student Handbook. However, it is the federal and state constitutions which define what is required for due process, not the WPU Student Handbook. If appellants were provided with the due process required by the constitution, a violation of "the Student Handbook cannot form the basis for a procedural due process claim." Martin v. Shawano-Gresham Sch. Dist., 295 F.3d 701, 707 (7th Cir.), cert. denied, 537 U.S. 1047, 123 S. Ct. 601, 154 L. Ed. 2d 520 (2002); see Webb v. McCullough, 828 F.2d 1151, 1159 (6th Cir. 1987). "It may have been unfair for the university not to follow its own procedures in [a student's] case, but it was not unconstitutional." Charleston v. Bd. of Trs. of the Univ. of Ill. at Chi., 741 F.3d 769, 774 (7th Cir. 2013), cert. denied, ___ U.S. ___, 134 S. Ct. 2719, 189 L. Ed. 2d 740 (2014).
Appellants briefly argue that the procedures here "breached WPU's 'contract' with its students." This one-sentence argument is unsupported by facts contained in the record or citation to authority. Thus, appellants' "conclusionary statement and lack of supporting legal argument . . . make it impossible for us to consider this issue." Muhammad v. Cnty. Bank of Rehoboth Beach, 379 N.J. Super. 222, 242 (App. Div. 2005) (citations omitted), rev'd on other grounds, 189 N.J. 1 (2006). Moreover, "when the student requests protections from the law of contracts rather than the law of procedural due process, New Jersey courts have declined to characterize the relationship between student and university as contractual." Hernandez, supra, 322 N.J. Super. at 17. Even in states which employ that characterization, a university's "fail[ure] to follow the dismissal procedures outlined in its handbooks to the letter . . . . does not automatically lead to a finding of breach." Sung Park v. Ind. Univ. Sch. of Dentistry, 692 F.3d 828, 831 (7th Cir. 2012).
In any event, appellants received the protections provided in the WPU Student Handbook. They do not allege they were not put on notice of the charges. They both received written notice from Tumlin in September 2013 informing them that the UHB would be convening to hold a hearing on charges that three sections of the Student Code of Conduct were violated.
Appellants argue that they did not receive "detailed charges" or "a copy of the evidence that [would] be used against him/her in a hearing" as provided in the WPU Student Handbook. However, appellants do not deny that they attended a pre-hearing meeting with Tumlin, pursuant to the WPU Student Handbook, to further discuss the charges and the procedures of WPU. Moreover, appellants admit that Tumlin advised them long before the hearing that the police reports were the evidence she relied on to issue the charges.
Prior to the UHB hearing, both appellants received the police reports containing a detailed rendition of all of S.B.'s complaints of misconduct by appellants. Those police reports were the evidence used against appellants at the hearing. Receipt of the police reports allowed appellants to prepare a defense with their counsel, prepare questions for the UHB, and obtain witnesses to refute the reports' contents. Thus, appellants were given adequate notice of the charges and the evidence pursuant to the WPU Student Handbook.
Such notice certainly comported with the Due Process Clause. See Goss, supra, 419 U.S. at 581, 95 S. Ct. at 739-40, 42 L. Ed. 2d at 739-40; Flaim, supra, 418 F.3d at 638 ("In the context of expulsion from an undergraduate university, 'the [written] notice should contain a statement of the specific charges and grounds which, if proven, would justify expulsion under the regulations of the Board of Education.'"); see also Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 686, 106 S. Ct. 3159, 3166, 92 L. Ed. 2d 549, 560 (1986) ("Given the school's need to be able to impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the educational process, the school disciplinary rules need not be as detailed as a criminal code which imposes criminal sanctions.").
The record indicates that there was some confusion and miscommunication between appellants' attorney and the representatives for WPU, who insisted that appellants could obtain the police reports only from the WPU police and only through their attorney. Whether appropriate or not, this insistence did not rise to the level of a due process violation as appellants got the police reports in time to have "'a meaningful opportunity to prepare for the hearing.'" Flaim, supra, 418 F.3d at 638 (quoting Jaksa v. Regents of Univ. of Mich., 597 F. Supp. 1245, 1250 (E.D. Mich. 1984)).
Appellants complain that the police reports were redacted, but the redactions consisted only of scratch-outs, which ineffectively tried to conceal all but the first initials of the students' names, and deleted unneeded personal identifiers. Appellants also argue that they should have been provided the statements, recordings, and videos referenced in the police reports. However, those underlying materials were not presented to the UHB. Instead, the police reports formed the sole basis of the UHB's determinations that Rockwell was responsible for hazing and that Nadarajah was responsible for assault and hazing.
See Furey v. Temple Univ., 884 F. Supp. 2d 223, 254 (E.D. Pa. 2012) ("the University has an understandable interest in maintaining the privacy of its students and community members and supporting the non-adversarial nature of its disciplinary proceedings which would be harmed by the requirement of providing contact information").
The police reports were read into the record by WPU Detective-Sergeant Michael Arp, who wrote the majority of the reports. Both appellants were given an opportunity to cross-examine Arp about the reports' contents and the descriptions and evaluations used in writing the reports. Because "nothing in the record indicates that [the underlying materials were] used in the decision-making process," because there is no indication that the underlying materials were "fundamentally different" from the police reports or "the oral account of [S.B.'s] allegations as told through the testimony of" Arp, and because appellants "had the opportunity to confront and cross-examine" Arp regarding S.B.'s allegations, there was no violation of due process. See Paredes v. Curtis, 864 F.2d 426, 429 (6th Cir. 1988).
B.
Appellants also argue that due process required additional procedures not required by the WPU Student Handbook. They complain that they were deprived of their constitutional right to confront and cross-examine S.B., because she was not present at the UHB hearing. The Sixth Amendment provides that "in all criminal prosecution, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ." U.S. Const., amend. VI. Similarly, the New Jersey Constitution provides that "in all criminal prosecutions the accused shall have the right . . . to be confronted with the witnesses against him . . . ." N.J. Const. art. I, ¶ 10.
However, S.B. was not a witness at the hearing. Further, "[u]niversity disciplinary proceedings are not criminal proceedings." United States v. Miami Univ., 294 F.3d 797, 821 (6th Cir. 2002). Moreover, "'[a] university is not a court of law, and it is neither practical nor desirable it be one.'" Flaim, supra, 418 F.3d at 635 n.1 (citation omitted). Finally, "[i]t is clear that admission of hearsay evidence is not a denial of procedural due process." Crook v. Baker, 813 F.2d 88, 99 (6th Cir. 1987) (citing Richardson v. Perales, 402 U.S. 389, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971)).
Goss "stop[ped] short of construing the Due Process Clause to require" the right "to confront and cross-examine witnesses supporting the charge" for short suspensions, leaving it to the discretion of the school whether "to summon the accuser [and] permit cross-examination." Goss, supra, 419 U.S. at 583-84, 95 S. Ct. at 741, 42 L. Ed. 2d at 740. Nor has confrontation been required for longer suspensions. See, e.g., Brewer v. Austin Indep. Sch. Dist., 779 F.2d 260, 263 (5th Cir. 1985).
Appellants object to the admission of hearsay from S.B. "Courts have generally been unanimous, however, in concluding that" the "rules of evidence . . . need [not] be applied" in school disciplinary proceedings. Flaim, supra, 418 F.3d at 635.
Important as they are, the rights at stake in a school disciplinary hearing may be fairly determined upon the "hearsay" evidence of school administrators charged with the duty of investigating the incidents. We decline to place upon a board of laymen the duty of observing and applying the common-law rules of evidence.
[Newsome v. Batavia Local Sch. Dist., 842 F.2d 920, 926 (6th Cir. 1988) (quoting Boykins v. Fairfield Bd. of Educ, 492 F.2d 697 (5th Cir. 1974), cert. denied, 420 U.S. 962, 95 S. Ct. 1350, 43 L. Ed. 2d 438 (1975)).]
We too "reject any suggestion that the technicalities of criminal procedure ought to be transported into school suspension cases." Brewer, supra, 779 F.2d at 263. To require confrontation, cross-examination, and application of the hearsay rules in university disciplinary hearings would transform them into "full-dress judicial hearing[s]." Flaim, supra, 418 F.3d at 637 n.2 (quoting Dixon v. Ala. State Bd. of Educ, 294 F.2d 150, 158-59 (5th Cir.), cert. denied, 368 U.S. 930, 82 S. Ct. 368, 76 L. Ed. 2d 193 (1961)). Balancing the Mathews factors, we hold that the burden to WPU in providing such "full-dress judicial hearing[s]" to students charged with violating the Student Code of Conduct outweighs the students' private interests in confrontation and exclusion of hearsay.
Appellants had the opportunity to and did respond to S.B.'s allegations by cross-examining Arp, by asking and answering questions about the police report, by presenting evidence including witnesses on their behalf, and by testifying. Thus, appellants "had an opportunity to present [their] side of the story," and "to characterize [their] conduct and put it in what [they] deem[] the proper context." Goss, supra, 419 U.S. at 581, 584, 95 S. Ct. at 740, 42 L. Ed. 2d at 739-40. Though it would have been preferable for S.B. to be present to testify to her allegations, we cannot say that WPU failed to provide "fundamentally fair procedures to determine whether the misconduct has occurred." Id. at 574, 95 S. Ct. at 736, 42 L. Ed. 2d at 734; see Flaim, supra, 418 F.3d at 634, 637; see also Gorman v. Univ. of Rhode Island, 837 F.2d 7, 16 (1st Cir. 1988) ("The question presented is not whether the hearing was ideal, or whether its procedure could have been better.").
Further, it is uncontested that S.B. was not a student at WPU at the time of the UHB hearing because she took a leave of absence for "medical and personal reasons." The UHB is not vested with subpoena power, and was unable to compel S.B.'s attendance at the UHB hearing. Appellants cite the pre-Goss case of Tibbs v. Bd. of Educ, 114 N.J. Super. 287 (App. Div.), aff'd o.b., 59 N.J. 506 (1971) (affirming "substantially for the reasons expressed in the opinion of Judge Kolovsky"). In Tibbs, the Board of Education expelled students from their high school for physical assault upon another student, and the expulsion was upheld by the State Commissioner of Education. Id. at 289 (Conford, J., concurring). The Board received statements from several unidentified student witnesses who were available to testify before the Board but did not do so because they were afraid of "physical reprisal." Ibid.
Judge Kolovsky's concurring opinion stated that due process required that the witnesses be identified and also required "the right to demand that any such witness appear in person to answer questions." Id. at 300 (Kolovsky, J., concurring). He added that the witnesses' refusal to testify before the Board of Education "depriv[ed] the accused students of their constitutional right to be confronted by and to examine the witnesses against them." Ibid. He stressed that the Board of Education "ha[d] the power to compel the attendance of witnesses" under N.J.S.A. 18A:6-20. Id. at 301. Thus, Judge Kolovsky found that "[c]ases upholding expulsions or suspensions from schools or colleges that are not governmental agencies and whose administrators lack such [subpoena] power are therefore of no precedential significance." Ibid. (citations omitted). Here, the subpoena power upon which Judge Kolovsky relied was not available to the UHB.
Under N.J.S.A. 18A:6-20, the "chairman of the board of trustees of the State or county college" may "subpoena to compel the attendance of witnesses" only "if the hearing is to be held before [the] board" of trustees, and only in a "dispute or controversy" arising under the school laws. See N.J.S.A. 18A:6-9, -19; see also Contini v. Bd. of Educ. of Newark, 286 N.J. Super. 106, 119 (App. Div. 1995), certif. denied, 145 N.J. 372 (1996).
Moreover, Judge Kolovsky distinguished the Fifth Circuit's decision in Dixon. Ibid. Dixon, "the leading decision of the modern era relating to fair procedures in college expulsion cases," ruled that due process did not require "mandatory production at the hearing of prosecution witnesses and cross-examination of them." Id. at 293-94 (Conford, J., concurring); see id. at 295 ("It is apparent from the decided cases that due process in the school or college context does not, by the weight of authority, require the production in person and right of cross-examination of adverse witnesses."). Indeed, Judge Kolovsky found that "due process requires an opportunity to confront and cross-examine adverse witnesses" in all student disciplinary cases, regardless of the length of the suspension. Id. at 301-02 (Kolovsky, J., concurring) (quoting Goldberg v. Kelly, 397 U.S. 254, 269-70, 90 S. Ct. 1011, 1021, 25 L. Ed. 2d 287, 300 (1970)).
Subsequently, the United States Supreme Court in Goss provided the definitive interpretation of the due process required in student disciplinary cases, found no right "to confront and cross-examine witnesses" in all student disciplinary hearings, and referred to Dixon as "the landmark decision" in the area of student discipline. Goss, supra, 419 U.S. at 576 n.8, 583, 95 S. Ct. at 737 n.8, 739, 42 L. Ed. 2d at 736 n.8, 740; see Flaim, supra, 418 F.3d at 637 n.2; see also Nash v. Auburn Univ., 812 F.2d 655, 664 (11th Cir. 1987) (courts have not applied "the Goldberg procedural requirements for quasi-judicial termination of welfare benefits in student disciplinary hearings"). Thus, Judge Kolovsky's interpretation of due process in Tibbs is inconsistent with the United States Supreme Court's subsequent interpretation of the Due Process Clause in Goss.
C.
Appellants also complain that they were deprived of their fundamental right to be represented by counsel during the UHB hearing. In fact, WPU allowed them to have an adviser at the hearing, and they chose their counsel. They were allowed to consult with him, but counsel was not permitted to examine witnesses or address the UHB.
Again, Goss "stop[ped] short of construing the Due Process Clause to require, countrywide, that hearings in connection with short suspensions must afford the student the opportunity to secure counsel." Goss, supra, 419 U.S. at 583, 95 S. Ct. at 740, 42 L. Ed. 2d at 740. The Court noted that schools "may permit counsel" in "more difficult cases." Id. at 584, 95 S. Ct. at 741, 42 L. Ed. 2d at 740. Even for longer suspensions, "the weight of authority is against representation by counsel at disciplinary hearings, unless the student is also facing criminal charges stemming from the incident in question." Gorman, supra, 837 F.2d at 16. "Ordinarily, colleges and universities need not allow active representation by legal counsel or some other sort of campus advocate." Flaim, supra, 418 F.3d at 636.
While the additional safeguard of professional advocacy may lessen the risk of erroneous expulsion by improving the quality of the student's case, the administrative burdens to a university, in the business of education, not judicial administration, are weighty. Full-scale adversarial hearings in school disciplinary proceedings have never been required by the Due Process Clause and conducting these types of hearings with professional counsel would entail significant expense and additional procedural complexity.
[Id. at 640-41.]"[A]t most the student has a right to get advice of a lawyer; the lawyer need not be allowed to participate in the proceeding in the usual way of trial counsel, as by examining and cross-examining witnesses and addressing the tribunal." Osteen v. Henley, 13 F.3d 221, 225 (7th Cir. 1993).
New Jersey courts addressing student disciplinary hearings have found only "a 'right to employ counsel'; the student 'need not be represented by counsel.'" See Hernandez, supra, 322 N.J. Super. at 17 (quoting R.R. v. Bd. of Educ., 109 N.J. Super. 337, 347-48 (Ch. Div. 1970)). However, appellants cite Garrow v. Elizabeth Gen. Hosp. & Dispensary, 155 N.J. Super. 78, 90 (App. Div. 1977), modified, 79 N.J. 549 (1979), which found that a physician has the right to be represented by counsel at a hearing regarding hospital admission rights. On appeal, however, our Supreme Court modified our opinion and held that "[i]n view of the physician's substantial interest in proceedings of this nature, on balance we believe that the physician should have the right to have counsel present at a mandated hospital hearing with respect to his application for admission to the staff," but "[c]ounsel's participation and his role will be subject to the reasonable rules laid down by the Hospital's board of trustees[.]" Garrow, supra, 79 N.J. at 566- 67. In any event, the qualified right to counsel recognized in Garrow "ar[ose] out of a licensed physician's dependence on staff privileges to earn a living and not based on a constitutional right to due process of law." Hernandez v. Overlook Hosp., 149 N.J. 68, 78 (1997).
WPU permitted appellants to consult counsel and to have counsel present at the UHB hearing to act as an adviser. Weighing the Mathews factors, we find no due process right to have counsel also advocate before the UHB. "To recognize such a right would force student disciplinary proceedings into adversary litigation. [WPU] would have to hire its own lawyer to prosecute these cases" and "[t]he cost and complexity of such proceedings would be increased, to the detriment of discipline as well as of the university's fisc." Osteen, supra, 13 F.3d at 225. "[F]urther formalizing the suspension process and escalating its formality and adversary nature may not only make it too costly as a regular disciplinary tool but also destroy its effectiveness as part of the teaching process." Goss, supra, 419 U.S. at 583, 95 S. Ct. at 741, 42 L. Ed. 2d at 740.
We therefore reject that appellants' claims that their hearing before the UHB board violated due process.
V.
Appellants argue that the UHB's findings that they were each responsible for hazing were arbitrary, capricious, and not supported by sufficient, credible evidence.
The "Hazing" section of the WPU Student Code of Conduct prohibits "[h]azing, including organizing, engaging in, facilitating, or promoting any conduct that places or may place another person in danger of bodily harm or serious psychological distress." Here, there was sufficient evidence to support the UHB's determination that appellants engaged in hazing of S.B. That evidence, particularly S.B.'s statements to the WPU police, read into the record and credited by the UHB, showed as follows.
Appellants were both involved in convincing S.B. that she was possessed by a demonic spirit named "Olivia." In order to end "Olivia's" possession of S.B., appellants and others in the group confined S.B. to "lock-down" in Nadarajah's dorm room, and when she tried to escape the room other members of the group tackled her. In addition, appellants both participated in an "exorcism" of S.B. Rockwell placed his hands on S.B.'s throat and Nadarajah repeatedly slapped S.B.
The UHB properly could credit S.B.'s report to police. Her reports about "alters," being slapped, and the exorcism were corroborated by the statements to police by other members of the group, and to some extent by appellants' testimony at the hearing. The UHB could credit her corroborated reports over appellants' denials, recharacterizations as role-playing and "rough housing," and claimed loss of memory.
Appellants' activities constituted hazing in the common understanding of the word. Moreover, appellants had organized, engaged in, facilitated, and promoted conduct that placed, or could have placed, S.B. in danger of bodily harm or serious psychological distress. It was not arbitrary or capricious for Dr. Martone to uphold the UHB finding in light of the evidence presented before the UHB.
"Haze" is defined to include "[t]o initiate, as into a college fraternity, by playing rough practical jokes on or exacting demeaning performances from" a victim. Webster's II New College Dictionary (Webster's) at 521 (3d ed. 2005). --------
Appellants argue that they were not involved in an "official" group or fraternal organization and, thus, WPU's hazing policy did not apply to them. However, the "Hazing" section of the WPU Student Code of Conduct does not require membership in an official or indeed unofficial group. Moreover, the WPU Student Handbook also contains a "University Wide Hazing Policy" that recognizes hazing as a "destructive act that is counterproductive in any setting." The WPU hazing policy defines hazing as "any activity that is expected of someone joining a group (or to maintain full status in a group) that humiliates, degrades or risks emotional and/or physical harm, regardless of the person's willingness to participate." This hazing policy does not distinguish between official and unofficial groups. While the hazing policy certainly applies to fraternities, sororities, and other recognized student organizations, it is not restricted to those groups.
Appellants argue the WPU hazing policy should be read as restricted to official groups because the Legislature's "Pledge's Bill of Rights" addresses "fraternities and sororities and other similar campus organizations." N.J.S.A. 18A:3-25. Appellants note that a criminal statute prohibits hazing "in connection with initiation of applicants to or members of a student or fraternal organization." N.J.S.A. 2C:40-3(a). However, in its "Hazing" section, the WPU Student Code of Conduct did not incorporate "the laws of the State of New Jersey" as it did in its "Disorderly Conduct" section. WPU was free to make its hazing policy apply to persons and groups not covered by the State's criminal law or the Legislature's "Pledge's Bill of Rights."
We reject appellants' remaining efforts to attack or limit the "Hazing" section. That section gave adequate notice that appellants' hazing was prohibited. It did not require that the hazing was "designed" to injure its victims, or that the victim must suffer substantial injury.
The record contains evidence that S.B. was considered a new member of appellants' group through her casual dating relationship with M.M. Appellants' actions could reasonably be interpreted as hazing S.B. as a new member of this group.
Appellants also argue that there was no evidence presented that they had participated in a WPU-sponsored "anti-hazing" course, which would have put them on notice that they were subject to the hazing policy. We find this argument without merit. Appellants were charged with violating a provision of the WPU Student Code of Conduct. The Student Code of Conduct provides that "[w]hen students become members of the William Paterson University community, it means that they must abide by the University's rules, regulations, and behavioral standards." There is no indication that, in order to be held accountable for "hazing" under Section S of the Code of Conduct, a student must engage in a WPU-sponsored "anti-hazing" course.
Nadarajah also argues there was not sufficient and credible evidence in the record for the UHB to determine she was responsible for "Assault" as defined in the WPU Student Code of Conduct. She further argues that Dr. Martone's affirmance of the UHB's determination was arbitrary and capricious. We disagree.
The "Assault" section of the WPU Student Code of Conduct prohibits "[a]ssault, physical abuse, verbal abuse, threats, intimidation, harassment, stalking, bullying, cyber bullying, coercion and/or other conduct that threatens or endangers the health or safety of any person." Here, S.B. reported to the police that Nadarajah had repeatedly slapped her in the face. Another student, J.A., corroborated this report and stated to the police that "even though [S.B.] consented to [the] slaps, Ms. Nadarajah sometimes used too much force, and seemed to hurt her." On the record presented before us on appeal, there was sufficient and credible evidence stemming from the extensive police reports and the testimony at the hearing to support the UHB's decision that Nadarajah was responsible for "[a]ssault, physical abuse," or other portions of the "Assault" section. The slapping, and Nadarajah's other conduct, "threaten[ed] or endanger[ed] the health and safety of" S.B. The "Assault" section does not require actual injury, or reports from medical providers.
VI.
Appellants' remaining arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION