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February 25, 1977

Ralph ESCOBAR, Jr., Plaintiff,
STATE UNIVERSITY OF NEW YORK/COLLEGE AT OLD WEST-BURY, and Edward S. Todd, Acting President, Defendants

The opinion of the court was delivered by: PRATT


 PRATT, District Judge.

 In this 42 U.S.C. § 1983 action plaintiff Escobar seeks (a) to enjoin preliminarily and permanently defendants' implementing his suspension as a student at State University of New York/College at Old Westbury (the college), (b) to rescind measures already taken for implementation of the suspension, and (c) to enjoin defendants from instituting any further disciplinary procedures against him in relation to the charges already heard by the college's Judicial Review Committee.

 Escobar, a 28 year old student at the college, is now one semester away from obtaining his Bachelor of Science degree. Defendant Todd, acting president of the college (President), on December 6, 1976 ordered him suspended but permitted him to complete the semester. Under a temporary restraining order granted by this court Escobar commenced classes on February 7, 1977 for his final semester. Argument of Escobar's motion for a preliminary injunction was heard on February 8, 1977 at which time the temporary restraining order was continued pending the court's determination of the motion.

 The court has subject matter jurisdiction under 28 U.S.C. § 1343(3) to adjudicate plaintiff's claim for injunctive relief under 42 U.S.C. § 1983 since expulsion from a state school must comport with requirements of due process. Winnick v. Manning, 460 F.2d 545 (C.A.2 1972); Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975).

 While the action is properly brought against defendant Todd who, as acting president of the college, is its chief administrative officer charged with responsibility for enforcement of the college's disciplinary procedures, Rules § 535.7(a), the action must be dismissed against the college itself since it is not a "person" within the meaning of 42 U.S.C. § 1983. Blanton v. State University of New York, 489 F.2d 377, 382 (C.A.2 1973).

 There are no contested issues of fact, and the parties have agreed that disposition of the preliminary injunction motion will dispose of the issues necessary for final adjudication of the action. Accordingly, trial of the action on the merits has been advanced and consolidated with the hearing of the application for preliminary injunction, and this decision constitutes the court's final determination of the issues in this action.

 At the center of this dispute lie two sets of disciplinary regulations and procedures. One of them, "The Rules of Public Order" (Rules) were adopted by the Board of Trustees of the State University of New York in compliance with the requirements of the state Education Law. Originally adopted on June 18, 1969 and amended on July 10, 1969, April 9, 1970 and April 29, 1970, they constitute Part 535 of Subchapter C, Chapter V, Title 8 of the Official Compilation of Codes, Rules and Regulations of the State of New York. The Rules apply to all branches of the State University throughout the state.

 The other set of disciplinary regulations and procedures is "The Code of Community Conduct for Students" (Code) which was developed by and for the Old Westbury College community and approved by the College Council, an official body appointed by the Governor.

 The Code is divided into two parts: (1) Code of Community Conduct for Students and (2) Violations of Code of Community Conduct. For convenience these will be cited respectively as Code # 1 and Code # 2. In the text discussion, however, they will be referred to collectively as the Code.

 In broad outlines Escobar claims that since he was subjected to a hearing and disciplinary action under the Code, he may not be subjected to the purported action taken by the President under the Rules. Alternatively, Escobar argues that even if the President was entitled to invoke the Rules, he did not follow the requirements of those Rules with the result that the President's action against him is invalid. Either way, Escobar claims, he has been denied due process of law.

 Defendants' argument is cast in jurisdictional terms. They urge that the Rules, which emanate from the state trustees, supersede the Code, which is adopted by the local college council, with the result that any matter which might properly fall within the Rules does not lie within the Code's jurisdiction. Defendants also argue that even if the college regulations were not followed, plaintiff nonetheless was actually accorded due process of law and therefore may not obtain relief from a federal court.


 Prior to November 2, 1976, plaintiff's misconduct at the college had received official attention on several occasions. His records show a series of incidents dating back to March 11, 1975 which included verbal abuse, threats, breaking of windows during fits of temper, drunkenness and difficulties with the security officers.

 On November 2, 1976, plaintiff argued with a professor in the education program, threatened violence and used abusive language. As a result of that incident, a complaint was filed against him under the Code, and a hearing was held before the Judicial Review Committee on November 9, 1976 covering charges on the November 2, 1976 incident and some of the prior incidents.

 After a full hearing the findings and recommendations of the Judicial Review Committee were reported to the Dean. There seemed to be no dispute over the basic facts. The recommendations by the Judicial Review Committee included a requirement that plaintiff formally apologize for his insulting remarks and abusive language on the occasion of the most recent offense, a direction that certain affirmative steps be taken toward helping plaintiff's adjustment and progress at the school, and a recommendation that should another similar incident occur the Dean should seriously consider either plaintiff's removal from the dorm or his outright dismissal from school.

 Under the Code, when the Dean received these recommendations he had a choice of either implementing them or referring them to the Judicial Council. Plaintiff also had a right to appeal to the Judicial Council. Plaintiff did not appeal, and the Dean did not exercise his discretionary power to refer the matter. Plaintiff then began to comply with the recommendations of the Judicial Review Committee.

 The President received his first knowledge of the November 2nd incidents and the proceedings before the Judicial Review Committee on or about November 19, 1976 when he received a copy of the report of the Judicial Review Committee's recommendations to the Dean. Based on his own recollection of other events involving the plaintiff, the President investigated further because he "questioned the substance and conclusions of the hearing". He discussed the matter with both Dean Clarke and Associate Dean James and on November 30th met with the Judicial Review Committee which had conducted the hearing. The President told the committee that his review of the records "obliged me to reject the recommendation of the panel in favor of the community's welfare". At the committee's request he listened to the tape recording of the hearing, but still remained convinced that the plaintiff should receive more severe sanctions than those imposed by the Judicial Review Committee.

 On December 6, 1976 the President prepared his determination in which he required plaintiff to vacate his housing assignment no later than December 10, to avoid circumstances or situations that would evoke confrontations and hostilities with students or personnel of the college, and until the last day of the fall semester finals, to remain off campus except for specific class responsibilities or faculty appointments. The President's memorandum further suspended plaintiff from all college activity with the close of the fall semester until upon written permission he might be permitted by the President to re-enroll. The President's stated authority for action was a passing reference to the "Rules of Public Order" (Rules).

 The President informed plaintiff in the December 6, 1976 memorandum that he was entitled to a preliminary hearing and, if requested, a formal hearing. *fn1" Strangely, the President's memorandum then says he would recommend his actions to the "Hearing Committee" *fn2" together with possible reenrollment of the plaintiff on condition that he obtain professional psychiatric evaluation and help together with certain statements from a psychiatrist.

 The following day, December 7, the President informed the Judicial Review Committee of his proposed action, which he had not yet made known to the plaintiff. The committee, however, questioned his authority to act in the manner he was proposing. Despite that disagreement, and even though his memorandum to the plaintiff indicated that the President's proposals were recommendations to the committee, the President nonetheless met with the plaintiff on December 8, reviewed the memorandum with him and had him sign it. That action was interpreted, reasonably, by Escobar as effecting his suspension from school. Plaintiff thereupon complied with the President's directions, and together with his wife and child vacated the dormitory accommodations.

 Nothing in the evidence indicates or even suggests any malice or bad faith on the part of the President. There is simply a marked difference of opinion between him on the one hand, and the Judicial Review Committee and the Dean on the other, as to what is appropriate disciplinary action for this plaintiff. Normally, such a dispute would not invoke the jurisdiction of a federal court. The fundamental principles involved here, however, together with the drastic impact of the President's action upon the plaintiff, give ...

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