On April 1, the Appellate Division reinstated the suspension of three New York University students for attending off-campus social gatherings without observing COVID-related safety practices in the weeks before the Fall 2020 semester commenced.[1] The lower court previously vacated the suspensions on the ground that NYU did not provide “clear, unambiguous and full pre-conduct notice” that the conduct at issue could constitute a policy violation.[2] The Decision reaffirms established law regarding the courts’ deference to disciplinary decisions by institutions of higher education and provides guidance to institutions as they grapple with the evolving public health landscape related to COVID-19. In reinstating the suspensions, the Appellate Division held that no such “heightened notice standard” exists for private institutions of higher education. The Appellate Division observed that it is “unrealistic to require a university to enumerate every example of unsafe conduct which falls under a written policy,” and that the students in this case “could have reasonably anticipated discipline for their conduct which put the University’s congregant student community at risk.”[3]
The Decision reaffirms established law regarding the courts’ strong deference to disciplinary decisions by institutions of higher education and provides guidance as institutions grapple with the evolving public health landscape related to COVID-19.
Underlying Facts
In the weeks leading up to the start of the semester, each student hosted or attended a series of off-campus gatherings in which attendees allegedly did not social distance or wear face coverings, as required by the Governor’s then-effective COVID-19 Executive Orders for social gatherings. Photographs posted on social media depicted the students unmasked and in physical contact with other unmasked individuals. After receiving reports of these events, NYU’s Office of Student Conduct determined that each student violated general provisions of the University’s conduct policy, which prohibited students from engaging in conduct that could “endanger or compromise the health, safety, or well-being” of the NYU community.
Appellate Division Considers the Issue of Notice
Although the Appellate Division rejected the lower court’s “clear, unambiguous and full pre-conduct notice” standard, the Court nonetheless examined whether the University’s policy and COVID-related communications provided adequate notice that the students’ behavior constituted a conduct violation.
The Appellate Division noted that NYU’s policy explicitly applied to off-campus conduct that threatened the health and safety of the University community. The policy stated that NYU could: “take student disciplinary action for conduct occurring outside the University context which substantially disrupts the regular operation of the University or threatens the health, safety, or security of the University community. When conduct constitutes violations of both University policy and public law, a student may be subject to both University student conduct action as well as public sanctions.”[4]
The Appellate Division also noted that NYU had sent multiple communications to students regarding COVID-19 protocols. The University advised students by email that they must “strictly abide by the new COVID-19 health and safety protocols— wearing a mask, keeping social distance” and could face discipline for behavior threatening the health and safety of others.[5] The University subsequently released a video reiterating that “[t]he NYU RULES OFGATHERINGS should be applied when you’re OFF-CAMPUS AS WELL. BARS AND PARTIES SHOULD BE AVOIDED because of their well-documented role in SPREADING THE CORONAVIRUS.”[6] This second communication made clear that NYU intended to “strictly enforce [its] safety and health rules” for conduct occurring both on- and off-campus,[7] and that students could “face FORMAL DISCIPLINARY ACTION, including RESTRICTION from campus buildings, REMOVAL from the residence halls, and possibly even SUSPENSION AND DE-ENROLLMENT[.]”[8]
Although the students were suspended for violating the University’s general health and safety policy, these COVID-related communications supported the Court’s conclusion that the students received sufficient pre-conduct notice that their behavior might result in disciplinary action.
Key Takeaways
The Appellate Division’s Decision affirms New York courts’ long-standing deference to institutions of higher education when it comes to matters of student discipline. Institutions evaluating their disciplinary policies and student conduct issues in response to the evolving public health circumstances should consider:
- To what extent do the existing or proposed policies explicitly apply to off-campus conduct?
- To what extent do the existing or proposed policies apply to conduct occurring between semesters and/or during breaks?
- To what extent do the existing or proposed policies incorporate guidance or policies issued by governmental entities?
- Do the existing or proposed policies explicitly identify the range of sanctions that the University would consider in the event of noncompliance?
[1] Matter of Storino v NY Univ., __AD3d__, 2021 NY Slip Op 02087 (1st Dept April 1, 2021).
[2] Id. at *2; Storino v NY Univ., 2020 NY Slip Op33445[U], *15 (Sup Ct, NY County 2020).
[3] Matter of Storino, 2021 NY Slip Op 02087 at *3.
[4] Id. at *1;NY St Cts Elec Filing [NYSCEF] Doc. No. 13, Joint Record on Appeal at 190, in Matter of Storino v NY Univ., Appellate Division, First Department, Case No. 2020-04294.
[5] Matter of Storino, 2021 NY Slip Op 02087 at *4; NYSCEF Doc. No. 13, Joint Record on Appeal at 249.
[6] Matter of Storino, 2021 NY Slip Op 02087 at *4-5; NYSCEF Doc. No.13, Joint Record on Appeal at 253-255.
[7] Matter of Storino, 2021 NY Slip Op 02087 at *4-5; NYSCEF Doc. No. 13, Joint Record on Appeal at 253.
[8] NYSCEF Doc. No. 13, Joint Record on Appeal at 257.
If you have questions concerning this topic or would like to discuss in further detail, please contact the authors Joshua Agins or Senovia Moncada.