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April 18, 2005.

PAUL S. OWENS, Plaintiff,
JOHN R. PARRINELLO, ESQ., Brighton Campus Monroe Community College Members of the Board of Trustees in their official capacity only, et al., Defendants.

The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District


Plaintiff, Paul Owens, brings this action under 42 U.S.C. § 1983, alleging that certain of his rights have been violated by defendant Monroe Community College's ("MCC") refusal to allow him to graduate with an associate's degree. On March 16, 2005, the Court issued an Order and Judgment dismissing a number of plaintiff's claims. Pending before the Court is a motion to dismiss plaintiff's remaining claims, which are brought against certain MCC officials and its board of trustees in their official capacities. For the following reasons, that motion is granted, and the complaint is dismissed. FACTUAL BACKGROUND

Plaintiff alleges that he was homeschooled by his parents through high school, in compliance with New York regulations governing homeschooling. He completed a four-year high school program in 2001.

  Plaintiff applied to and was accepted at MCC, beginning with the Fall 2001 semester. By the time this action was commenced in September 2003, plaintiff had completed four semesters of study at MCC, and had earned enough credits to be awarded an associate's degree. In December 2002, however, plaintiff received a letter from MCC informing plaintiff that MCC "ha[d] recently been notified by the New York State Education Department that documentation of a high school diploma or equivalency is required before a student can graduate from a New York State college." Amended Complaint (Dkt. #25) Ex. 7. The letter further stated that MCC's records indicated that MCC had never received proof from plaintiff that he had either a high school diploma or a general equivalency diploma ("GED"). The letter stated that if plaintiff had not graduated from high school or earned a GED, he should "consider one of the options listed in the enclosure. You will need to take some action to ensure you qualify for graduation when you complete your degree requirements." Id. The letter then provided information about how plaintiff could obtain a GED.

  Plaintiff did not attempt to obtain a GED. He does not contend that he would have been unable to obtain a GED, but states that he is unwilling to do so because a GED "carries the stigma of being a substitute for a high school diploma utilized primarily for high school dropouts. . . ." Amended Complaint ¶ 38.*fn1

  In October 2003, plaintiff applied for admission to the State University of New York at Brockport ("Brockport"), seeking to transfer there. Brockport's admissions director allegedly told plaintiff that he was ineligible for admission because plaintiff did not have a state-recognized high school diploma or GED. Amended Complaint ¶ 37.

  Plaintiff then applied to and was accepted at Roberts Wesleyan College ("Roberts") as a junior in January 2004. He is currently attending Roberts.

  Plaintiff commenced this action in September 2003, alleging various violations of his constitutional rights. The original complaint sought only declaratory and injunctive relief, primarily aimed at directing MCC to issue him an associate's degree. In April 2004, plaintiff filed an amended complaint which also requests an award of damages for the difference between the tuition that plaintiff is paying at Roberts (about $6100 per semester) and the tuition that he would have paid had he been accepted at Brockport (about $2600 per semester).

  In September 2004, the New York State Board of Regents amended the regulations governing homeschooling to provide that, as long as their homeschool instruction meets certain requirements, homeschooled students can be graduated from a New York college. In addition, at oral argument on the pending motion, the parties agreed that, pursuant to those amended regulations, MCC has now issued plaintiff an associate's degree. Plaintiff concedes that his claims for injunctive relief are therefore moot, but he still seeks damages. See Plaintiff's Memorandum of Law (Dkt. #58) at 4.

  The amended complaint asserts four causes of action. The first alleges that plaintiff possesses a protected property interest in receiving an earned associate's degree, and that defendants deprived him of that property interest without due process of law. Plaintiff's second cause of action alleges that defendants discriminated against plaintiff because of his parents' exercise of their constitutional right to homeschool plaintiff. The third claim alleges that defendants violated plaintiff's constitutional right to equal protection by treating him differently from students with high school diplomas or GEDs. Plaintiff's fourth cause of action alleges a violation of New York Education Law § 3204, which provides that a child "may attend a public school or elsewhere," so long as the instruction given "elsewhere" is "substantially equivalent" to that given in public schools.


  I. Due Process Claim

  Plaintiff's due process claim rests upon his assertion that he had a protected property interest in graduating from MCC. He contends that this interest arose by virtue of an implied contract between him and MCC.

  It is true that New York courts have identified an implied contract between an institution of higher learning and its students which requires the "academic institution [to] act in good faith in its dealings with its students." Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991) (quoting Olsson v. Board of Higher Educ., 49 N.Y.2d 408, 414 (1980)). Pursuant to that implied contract, "if [the student] complies with the terms prescribed by the [school], he will obtain the degree which he sought." Olsson, 49 N.Y.2d at 414 (quoting Matter of Carr v. St. John's Univ., 17 A.D.2d 632, 633, aff'd 12 N.Y.2d ...

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