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TUROF v. KIBBEE

UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF NEW YORK


December 2, 1981

Marc TUROF, Plaintiff,
v.
Robert J. KIBBEE, Chancellor of the Board of Higher Education of the City of New York, Brooklyn College of the City University of New York and Robert L. Hess, President of Brooklyn College, Defendants

The opinion of the court was delivered by: PLATT

MEMORANDUM AND ORDER

This is an action for injunctive relief and damages brought under 42 U.S.C. ยง 1983 and arising out of the suspension of plaintiff, Marc Turof, from Brooklyn College.

 Mr. Turof alleges violations of his right to due process resulting from claimed irregularities in the scheduling of pre-hearing informal conferences and in alleged improprieties in conducting the disciplinary hearing that was held prior to his actual suspension.

 Mr. Turof sought a preliminary injunction to prevent the defendants from imposing any sanctions upon him without conforming to the procedural requirements set forth in the By-laws of the Trustees of Brooklyn College (By-laws). The defendants crossmoved to dismiss the complaint for failure to state a claim upon which relief could be granted and lack of personal jurisdiction or alternatively, for summary judgment.

 A hearing was held before this Court on April 3, 1981 at which Mr. Turof and Gregory Nolan, coordinator of the Lay Advocate Program at Brooklyn College, testified. The defendants did not at that time present any witnesses. By order dated April 24, 1981, plaintiff's motion for a preliminary injunction was denied. We reserved decision on defendant's cross motion for summary judgment so that the plaintiff might have the opportunity to present additional evidence, including a transcript of the disciplinary proceeding. That transcript was presented to this Court in October. Having now had the opportunity to review plaintiff's evidence in its entirety and for the reasons set forth below, defendant's motion for summary judgment is granted. *fn1"

 I

 There is no dispute as to most of the facts in this case. The only factual dispute, which is not a material one, will be discussed later.

 At the outset, security guards at Brooklyn College charged that Mr. Turof had violated several regulations. As authorized by Section 15.3 of the By-laws, *fn2" vice president for Campus Affairs, Dr. Hilary Gold, scheduled pre-hearing informal conferences for Mr. Turof to discuss the charges. Despite the fact that Mr. Turof had notified the College of his new address, the notices of the pre-hearing conferences were sent to him at an old address. Because of the College's error, Mr. Turof did not learn of the scheduled conferences until after the appointed dates had passed. Thereafter he requested that Dr. Gold reschedule conferences on those two charges and, in addition, schedule a conference regarding a third disciplinary charge that had since been lodged against him. *fn3" Dr. Gold refused all of Mr. Turof's requests, ostensibly because of Mr. Turof's failure to appear at the first two scheduled conferences. *fn4" Instead, Dr. Gold scheduled a disciplinary hearing on the three charges to be held on February 23, 1981, at 4:00 P.M.

 In accordance with the By-laws as interpreted by the Disciplinary Committee, Mr. Turof was allowed to have an attorney present at the hearing to advise him, although he was required to conduct his own defense. Mr. Turof's attorney, Gregory Nolan, was permitted to make an opening statement, confer with Mr. Turof and conduct an examination of one witness.

 The Disciplinary Committee, which was comprised of students and faculty, subsequently found that Mr. Turof had not violated school rules and regulations regarding smoking marijuana on campus as charged in the first complaint against him. He was found to have violated rules and regulations regarding physical assaults and altercations with school security guards as charged in the second and third complaints. He was suspended and barred from the campus until the Spring, 1982 semester. The Disciplinary Committee also required evidence of Mr. Turof's active participation in a therapeutic program as a condition to readmission.

 Mr. Turof appealed the Committee determination to the President of the College, Robert Hess. That appeal was denied on May 6. *fn5"

 Mr. Turof argues that the school's failure to afford him a pre-hearing informal conference constituted a due process violation. In addition, he claims that at the disciplinary hearing itself, he was denied due process in that he was denied the assistance of counsel, the means to compel the attendance of witnesses on his behalf and the right of cross-examination; in that he was required to conduct his own defense and that he was confronted with three unrelated complaints which should have been considered in separate hearings; in that the complainants, security guards, were permitted representation by a third party and in that the Disciplinary Committee's legal advisor also advised the complainant's representative.

 Although Mr. Turof's list of due process violations is exhaustive, he relies primarily on two claims: the College's failure to afford him a pre-hearing informal conference; and the disciplinary Committee's interpretation of the By-laws in not allowing Mr. Turof's counsel to represent him. *fn6"

 II-Pre-hearing Conference

 In Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975), the Supreme Court set forth the minimum procedural requirements mandated by the Due Process Clause in the case of a student suspension of a duration not exceeding 10 days. The Court held that written notice of the charges and "if (the student) denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story (are the) rudimentary precautions against unfair or mistaken findings of misconduct and arbitrary exclusion from school." Id. at 582, 95 S. Ct. at 740. The Court did not require formal hearings, the opportunity to be represented by counsel, a right of confrontation or cross-examination of witnesses or an opportunity to call witnesses. Id. at 585, 95 S. Ct. at 741.

 These minimum protections of notice and an informal hearing were explicitly limited to suspensions not exceeding ten days duration. Id., 95 S. Ct. at 741. "Longer suspensions or expulsions," the Court noted, "may require more formal procedures." Id., 95 S. Ct. at 741.

 The informal conference procedure afforded by the Brooklyn College By-laws is the procedural equivalent of the notice and opportunity to explain minimum due process standard set forth in Goss. Were this the only procedural protection afforded by Brooklyn College, Mr. Turof's suspension might well violate the Fourteenth Amendment for two reasons. First, the procedure itself might be found insufficient because Mr. Turof's suspension exceeded ten days. Second, assuming the constitutional adequacy of the procedure, the College's failure to properly notify him about the conferences and allow him an opportunity to explain the charges, regardless of the length of the suspension, would violate the minimum requirements set forth in Goss.

 Nevertheless, the informal conference does not encompass the entire panoply of procedural protections set forth in the By-laws. *fn7" Given the By-laws provision for a hearing upon notice, participation of counsel and cross-examination, were Brooklyn College to eliminate entirely its informal conference procedures, the remaining procedures would exceed the minimum requirements set forth in Goss. The mere fact that they have chosen to include the informal conference provision does not mean that the provision is constitutionally mandated.

 The Second Circuit Court of Appeals has stated that it is "not inclined to hold that every deviation from a university's regulations constitutes a deprivation of due process." Winnick v. Manning, 460 F.2d 545, 550 (2d Cir. 1972). *fn8" In Winnick, procedural irregularities were committed during the course of a preliminary suspense hearing, but those defects were found to be "cured by the full disciplinary hearing ... which in effect was a trial de novo." Id. at 549. The Court went on to say that in Winnick "the alleged deviations did not rise to constitutional proportions and did not constitute in themselves a denial of due process ... and did not affect the fundamental fairness of the hearing." Id. at 550.

 In the instant case, Mr. Turof was afforded a full hearing. Whatever other allegations he presents as to the fairness of that hearing aside, the fairness of the hearing was not affected by the absence of the conferences.

 Mr. Turof claims that had conferences been held, some or all of the charges may have been resolved, obviating the need for the hearing. While assuming arguendo that this is true, it does not force the conclusion that the hearing was consequently unfair.

 The hearing procedure provides greater protection than the informal conference and is designed to lessen the chance of an unjustifiable suspension or other disciplinary measure. This does not imply that the informal conference is a meaningless exercise. It is clearly a more expeditious and simpler means of resolving less complex cases. The Brooklyn College Trustees may well prefer it in the first instance to the more involved and time consuming fact finding hearing of a Disciplinary Committee. Nonetheless, given the safeguards of the full hearing, whatever procedural defects were incurred by Brooklyn College's failure to afford Mr. Turof a pre-hearing conference were "cured by the full disciplinary hearing." Winnick v. Manning, supra, at 549.

 III-Assistance of Counsel

 Mr. Turof's second claim of any significance is that in order to comport with due process, a disciplinary hearing resulting in a suspension for more than one semester requires that the student be allowed to have legal representation and that in fact the By-laws allow such representation at any disciplinary hearing. *fn9"

 The Disciplinary Committee interpreted the By-laws as not permitting full participation or representation by counsel, but as allowing counsel to assist and advise the student and participate in part.

 In Wasson v. Trowbridge, 382 F.2d 807 (2d Cir. 1967), the Circuit Court considered whether a Merchant Marine Cadet was entitled to representation by an attorney at the hearing which preceded his expulsion from the Merchant Marine Academy. *fn10" The Court found that there was no right to counsel where the hearing was investigative, the government did not proceed through counsel, the individual was mature and educated and had sufficient knowledge of the facts to adequately defend his position. Id. at 812. See also, Madera v. Board of Ed. of N.Y., 386 F.2d 778 (2d Cir. 1967); Dixon v. Alabama State Bd. of Ed., 294 F.2d 150 (5th Cir.), cert. denied, 368 U.S. 930, 82 S. Ct. 368, 7 L. Ed. 2d 193 (1961).

 In this case, neither the Disciplinary Committee nor the complainants proceeded through counsel. The Committee did have a legal advisor (but so did Mr. Turof). There is no indication that she conducted any questioning or directed any aspect of the hearing.

 The case against Mr. Turof was presented by the head of the College security department. He admitted having had experience in a few similar type hearings. *fn11" The transcript of the hearing however fails to reveal that this experience gave him any advantage in presentation over Mr. Turof. In addition, the regulations allowed Mr. Turof to be assisted by counsel. The transcript reveals that Greg Nolan, Esq., was present, actively advised Mr. Turof, was given an opportunity to make a statement, to speak to the committee and examine a witness. *fn12" Mr. Nolan's participation far exceeded that anticipated in the regulation.

 Furthermore, the transcript reveals that Mr. Turof had sufficient knowledge of the facts to defend himself. While the substantive charges against Mr. Turof continually place his emotional and social maturity in question, the transcript reveals someone who understood very clearly the nature of the charges and what would be required of him in rebutting those charges. *fn13" Indeed, the Committee did find that Mr. Turof could not be subjected to disciplinary action for the marijuana charge and imposed sanctions upon him only on the basis of the two assault charges.

 IV-Other Claims

 Mr. Turof's additional claims require little more than passing comment. He claims he was denied the means to compel attendance of witnesses whereas the College could easily compel the attendance of the complainant witnesses because they were its employees. Mr. Turof did have witnesses who testified before the Committee on his behalf. That he could have had others had he been able to compel their appearance may have been a source of frustration for him, but does not rise to the level of a constitutional deprivation. *fn14"

 Mr. Turof claims he was denied the right of cross-examination. The transcript does not reveal where or when he was denied the opportunity to cross-examine any witness.

 He additionally claims that he was prejudiced by the fact that the three complaints were considered in the same proceeding. There is no indication that he was so prejudiced. The Disciplinary Committee was able to consider separately the evidence on the three charges. It found that the marijuana charge was unsupportable. It did find a violation on the other two charges. The facts underlying one of those charges had also formed the basis for an action in a New York State Court by a security guard against Mr. Turof. Mr. Turof had been adjudicated guilty. It is thus no surprise that the Committee found he had committed the acts alleged. This finding on this one charge in itself would have been sufficient to justify the disciplinary action taken here.

 Finally, Mr. Turof alleges that the Committee's legal advisor also advised the complainant's representative. This claim by Mr. Turof is the only one in which there is factual contest. During the course of the hearing the legal advisor and the head of security were observed speaking. Mr. Turof and Mr. Nolan accused the legal advisor of assisting the security officer. She denied that she was assisting him.

 These factual differences will not defeat defendant's motion for summary judgment. "Summary judgment should not be denied where the only issues raised are frivolous or immaterial ones." United States v. Matheson, 532 F.2d 809 (2d Cir.), cert. denied, 429 U.S. 823, 97 S. Ct. 75, 50 L. Ed. 2d 85 (1976). The factual question here is simply not material. Even assuming that in this instance, the Committee's legal advisor provided some unknown type of assistance to the complainant's representative, it did not, given the length and scope of the hearing amount to a constitutional deprivation.

 V

 In Goss v. Lopez, supra, the Supreme Court stated that a student has a constitutionally protected interest in avoiding an "unfair or mistaken exclusion from the educational process." 419 U.S. at 580, 95 S. Ct. at 739. That interest must be balanced against the school's interest in maintaining discipline. The Brooklyn College By-laws establish a set of procedures which are designed to ensure the protection of the students' interest, while furthering its own. Those procedures comport with the requirements of due process. Furthermore, we find that Mr. Turof's hearing adequately conformed to the procedures set forth in the By-laws.

 In view of the foregoing, defendant's motion for summary judgment is hereby granted.

 ORDERED.


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