| Matter of Warner v Elmira Coll. |
| 2009 NY Slip Op 01387 [59 AD3d 909] |
| February 26, 2009 |
| Appellate Division, Third Department |
| In the Matter of Alisa Warner, Appellant, v Elmira College,Respondent. |
—[*1] Levene, Gouldin & Thompson, L.L.P., Binghamton (Lauren A. Kiley of counsel), forrespondent.
Kane, J. Appeal from a judgment of the Supreme Court (Coccoma, J.), entered June 12, 2008in Otsego County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 78, to review a determination of respondent that expelled petitioner as a full-time student.
After receiving a confidential tip that drugs, specifically cocaine, were present in petitioner'sdorm room, respondent's director of residential life and other staff conducted a search of theroom. They discovered a white powdery substance under a computer on petitioner's desk.Respondent's director of campus security conducted a field test of the substance, apparentlyobtaining a positive result for cocaine. Following a hearing, respondent's Discipline Committeefound that petitioner violated respondent's drug policy and should be expelled from school.Respondent's president denied petitioner's administrative appeal. Petitioner commenced thisproceeding seeking to annul respondent's determination. Supreme Court dismissed the petition,prompting petitioner's appeal.
Respondent's decision was arbitrary and capricious. When reviewing a private university'sdisciplinary determinations concerning its students, where a hearing is not required by law, thecourt must determine "whether the university substantially adhered to its own published rulesand guidelines for disciplinary proceedings so as to ascertain whether its actions were arbitraryor capricious" (Matter of Rensselaer Socy. of Engrs. v Rensselaer Polytechnic Inst., 260AD2d 992, 993 [1999]; see Matter of Basile v Albany Coll. of Pharm. of Union Univ.,[*2]279 AD2d 770, 771 [2001], lv denied 96 NY2d 708[2001]; Matter of Mu Ch. of Delta Kappa Epsilon v Colgate Univ., 176 AD2d 11, 14[1992]). The court must then review whether the university's determination is rationally basedupon the evidence; otherwise the determination is arbitrary and capricious (see Matter ofBasile v Albany Coll. of Pharm. of Union Univ., 279 AD2d at 771). While respondentadhered to its written rules, its determination was arbitrary and capricious because thedetermination was not rationally based upon, and was contradicted by, the evidence.
The main question was whether the substance found in petitioner's dorm room was cocaine.At the hearing, petitioner provided documents indicating that a positive test for cocaine has threesteps, with the second step producing a pink color and the third step ending in a pink over bluecolor sequence. Pink alone is not presumptively positive for cocaine. Respondent's dean ofstudent life, who presided over the hearing, submitted an affidavit stating that petitioner "did notpresent any evidence to show that these [color] patterns were not seen in this particular fieldtest." Yet the testing form submitted by respondent noted that the test was positive for cocaine,but listed the color as pink. The security director who conducted the test did not testify, makingit unclear whether he failed to properly complete the form with the full color sequence orwhether he incorrectly believed that pink was a positive result. Considering the explanatorydocuments submitted by petitioner, it was arbitrary and capricious for the Discipline Committeeto rely on the ambiguous testing form as proof that petitioner possessed cocaine. As there was noother evidence of drug possession, respondent's determination must be annulled.
Mercure, J.P., Rose, Lahtinen and Malone Jr., JJ., concur. Ordered that the judgment isreversed, on the law, without costs, and petition granted.