| Matter of Powers v St. John's Univ. Sch. of Law |
| 2013 NY Slip Op 06688 [110 AD3d 888] |
| October 16, 2013 |
| Appellate Division, Second Department |
| In the Matter of David Powers, Appellant, v St.John's University School of Law, Respondent. |
—[*1] Garfunkel Wild, P.C., Great Neck, N.Y. (Michael J. Keane and Lauren M. Levine ofcounsel), for respondent.
In a proceeding pursuant to CPLR article 78 to review a determination of St. John'sUniversity School of Law dated September 10, 2010, which rescinded the petitioner'sadmission and, in effect, denied his application for admission nunc pro tunc, thepetitioner appeals from a judgment of the Supreme Court, Queens County(Pineda-Kirwan, J.), entered July 18, 2011, which denied the petition and dismissed theproceeding.
Ordered that the judgment is affirmed, with costs.
The petitioner applied for admission to St. John's University School of Law(hereinafter the law school) in November 2005. In response to a question regardingwhether he had ever been charged with, pleaded guilty to, or been found guilty of, acrime, he explained that he had been arrested in New Jersey in July 1999 "by the policeshortly after a drug deal," and ultimately accepted a plea bargain pursuant to which hewas convicted of possession of a controlled dangerous substance in the third degree, inviolation of NJ Stat Ann § 2C:35-10 (a) (1). The petitioner certified on hisapplication that his answers were complete and accurate, and that he understood that hisfailure to provide truthful answers could result in the denial of admission, dismissal as astudent, or rescission of an awarded degree. At the time his application for admissionwas submitted, the petitioner was unaware that his petition in New Jersey to have hisrecord expunged had been granted.
When the petitioner endeavored to obtain an advance ruling on his eligibility for andthe likelihood of his admission to the New York State bar in light of his conviction, thelaw school first learned of the original charges that had been asserted against thepetitioner, including, inter alia, charges for distribution of LSD in the second degree,possession of LSD with the intent to distribute in the second degree, possession ofEcstasy in the third degree, and possession of Ecstasy with the intent to distribute. Thelaw school then advised the petitioner that he must amend his application for admissionand include a full accounting of what transpired with respect to his arrest in July 1999and an explanation with respect to his failure to initially disclose this information.Although the petitioner advised the law school that the statement in his applicationconcerning his criminal record [*2]was not factuallyincorrect and did not need to be amended, he nonetheless supplemented his applicationand made available all details and documents surrounding his expunged record. In hissupplement, the petitioner acknowledged that he had been arrested for distribution andhad knowingly distributed illegal substances, and freely admitted his guilt of that crime,although he maintained that he did not engage in distribution of illegal substances on aregular basis. Following the receipt of the petitioner's supplement, the law schoolultimately rescinded the petitioner's admission and, in effect, denied the petitioner'sapplication for admission nunc pro tunc. The law school noted that the petitioner'soriginal application contained material omissions and misrepresentations involving theactual criminal charges that had been brought against him and that his supplementalcorrespondence acknowledged that he had been charged with and was guilty ofdistribution of LSD and Ecstasy.
The law school's determination was made on the grounds of the petitioner'smisrepresentations and omissions on his application regarding the extent of his priorcriminal background, and was based upon the exercise of discretion after a full review.Despite the petitioner's subsequent disclosure, under the circumstances presented here,and in light of the true nature of the petitioner's prior criminal activity, the law school'sdetermination to rescind his acceptance was not arbitrary and capricious, and does notwarrant judicial intervention (see Matter of Harris v Trustees of Columbia Univ. inCity of N.Y., 62 NY2d 956, rev'g 98 AD2d 58, 67-73, for reasons stated indissent of Kassal, J. [1984]; Tedeschi v Wagner Coll., 49 NY2d 652, 660 [1980];Matter of Galiani v Hofstra Univ., 118 AD2d 572 [1986]; see also Matter ofCarr v St. John's Univ., N.Y., 17 AD2d 632 [1962], affd 12 NY2d 802[1962]; Matter of Simkovich v Vassar Coll., 249 AD2d 551 [1998]).
Since the petitioner disclosed, subsequent to his admission, that he was originallycharged with and was guilty of distributing, and possessing with intent to distribute, acontrolled dangerous substance, we do not consider the penalty imposed to be "sodisproportionate to the offense . . . as to be shocking to one's sense offairness" (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 ofTowns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 233[1974]; see e.g. Matter of Attardv Kampe, 95 AD3d 1005 [2012]), thus constituting an abuse of discretion as amatter of law.
Further, contrary to the petitioner's contentions, he was not entitled to invoke thegrievance procedure set forth in the law school's student handbook (see Matter ofMitchell v New York Med. Coll., 208 AD2d 929, 930 [1994]).
The petitioner's remaining contentions are without merit. Lott, J.P., Austin and Sgroi,JJ. concur.
Miller, J., dissents and votes to reverse the judgment, grant the petition, annul thedetermination of St. John's University School of Law, dated September 10, 2010, whichrescinded the petitioner's admission to St. John's University School of Law, and remit thematter to St. John's University School of Law for a new determination, with thefollowing memorandum:
St. John's University School of Law (hereinafter St. John's Law School) is apreeminent law school that is a part of a private Catholic Vincentian University. Over theyears, St. John's Law School has produced a distinguished group of lawyers and jurists,and has played a key role in the New York City legal community. However, itsdetermination in this case to retroactively deny an admitted student's application foradmission after he had successfully completed more than 1½ years of course work,without following the grievance process established in its student handbook, wasarbitrary and capricious and in violation of lawful procedure. Accordingly, I mustrespectfully dissent.
The petitioner, David Powers, filed an application for admission to St. John's LawSchool on November 10, 2005. At the time, Powers was considering at least 18 other lawschool programs.[*3]
The application for admission to St. John's LawSchool contained the following question: "Have you ever been charged with, pleadedguilty to, or been found guilty of any crime, offense, or violation (other than a minortraffic violation), or is any such action pending or expected to be brought against you?"In response to this question, Powers answered, "Yes." The application continued: "If yes,please explain in a supplementary statement or electronic attachment the relevant facts,including the nature of the offense, the dates and courts involved, and the penaltyimposed, if any. Note: Although a conviction may have been sealed or expungedfrom the record by an order of the court, it nevertheless should be disclosed in answer tothis question."
In response to this request for disclosure, Powers submitted a three-page"Background Disclosure," which indicated, inter alia, that in July 1999, he had been"pulled over by police shortly after a drug deal" and that he had ultimately "accepted aplea bargain to attend an inpatient rehabilitation program and complete probation."Powers stated that he "was convicted of third degree possession of a controlleddangerous substance" and "successfully completed all facets of the [rehabilitation]program and [his] probation." At the time Powers made this disclosure, all recordsrelating to his arrest on July 9, 1999, and all records concerning his "detection,apprehension, detention, trial, or disposition," had been expunged by the Superior Court,Morris County, pursuant to an order dated October 27, 2005.
At the end of the application for admission to St. John's Law School, the followingstatement appeared: "I certify that the answers to the above questions are complete andaccurate. I understand that the failure to provide truthful answers to any of theapplication questions, or the failure to inform the Admissions Office of any changes in,or additions to, the information contained in my answers, may result in denial ofadmission, dismissal, or rescission of an awarded degree from St. John's University ofLaw" Powers certified his application electronically.
St. John's Law School reviewed Powers's application for admission, and did notmake any requests for additional information or documentation. According to theaffidavit of St. John's Law School Professor Larry Cunningham, the assistant dean forstudents, St. John's Law School ultimately "granted [Powers's] admission despite hiscriminal history," and Powers began taking classes as a part-time student in Fall 2006,successfully completing three semesters of course work.
After completing his Fall 2007 semester, Powers was granted a leave of absence sothat he could pursue an employment opportunity in Hong Kong. While he was abroad,Powers decided to petition the Appellate Division, Second Judicial Department, for anadvance ruling on his application for admission to the New York State Bar (see22 NYCRR 805.1 [o]). Pursuant to that process, Powers sought a letter from St. John'sLaw School to submit with his petition for an advance ruling. His submissions to St.John's Law School included a letter that Powers intended to submit to the AppellateDivision, in which he indicated that when he was arrested he had originally been chargedwith distribution of a controlled dangerous substance, but that the charge had beenreduced as part of his plea agreement. Powers also stated that he had a drug problemwhen he was between 16 and 21 years old, and that to "support [his] habit, [he]sometimes would sell drugs [*4]to others."
St. John's Law School refused to provide the requested letter on the ground thatPowers had failed to disclose in his application for admission the information containedin his proposed letter to the Appellate Division. In subsequent correspondence, St. John'sLaw School informed Powers that there was "a potential misconduct issue" in that he hadfailed to disclose the fact that he would "sometimes sell drugs to others" and that he hadoriginally been charged with distribution of a controlled dangerous substance. Powerswas further informed that in order "to continue at St. John's School of Law," he wouldhave to "seek to amend [his] application." In order to do so, Powers was instructed to"provide a full accounting of the criminal activity at issue," including "the exact charge,disposition, relevant court dates, and the facts of the crime."
Powers submitted additional materials in response to the request of St. John's LawSchool, including a Presentence Report, which listed the specific sections of the NewJersey Statutes with which he was charged upon his arrest. Thereafter, Powers wassummoned to appear before four deans of the St. John's School of Law: the AssistantDean for Students-Designate, the Assistant Dean of Admissions and Student FinancialServices, the Associate Dean and Professor of Law, and the Vice Dean Emeritus.Powers, who appeared alone, was questioned about additional aspects of his arrest,including the weight of the controlled dangerous substances he allegedly sold and theirestimated street value. Although no transcript of this questioning appears in the record,and there is no indication that any written record of the minutes of this meeting wasmaintained, one of the deans present at the meeting with Powers later indicated thatPowers answered the questions put to him by the four deans.
Powers was subsequently informed, in a letter attached to an email message sent tohim by the Assistant Dean for Students-Designate, that it had been determined that hisapplication for admission contained "material omissions and misrepresentationsinvolving criminal charges that had been brought against [him]." The letter stated thatPowers had subsequently provided St. John's Law School with information that he hadbeen charged with distribution of a controlled dangerous substance, and that he hadadmitted to St. John's Law School that he was, in fact, guilty of that charge even thoughhe had pleaded guilty to a lesser charge. The letter concluded that, since the applicationfor admission provided that " 'the failure to provide truthful answers to any of theapplication questions . . . may result in . . . dismissal. . . from St. John's University School of Law' . . . the LawSchool has rescinded your admission." No additional explanation of this determination orthe impact of the punishment appears in the record.
Powers subsequently commenced this proceeding to review the determinationrescinding his admission to St. John's Law School. In the petition, Powers contended,among other things, that the determination to rescind his admission after he successfullycompleted three semesters of law school was arbitrary and capricious, irrational, and inviolation of lawful procedure. In a judgment entered July 18, 2011, the Supreme Courtdenied the petition and dismissed the proceeding. Powers appeals.
The determination of St. John's Law School to rescind Powers's admission after hecompleted more than1½ years of course work is arbitrary and capricious and inviolation of lawful procedure. Accordingly, the petition should have been granted, andthe determination rescinding his admission should have been annulled.
"[H]aving accepted a State charter and being subject to the broad policy-makingjurisdiction of the Regents of the University of the State of New York, a single corporateentity of which they are deemed a part . . . private colleges and universitiesare accountable in a CPLR article 78 proceeding, with its well-defined standards ofjudicial review, for the proper discharge of their self-imposed as well as statutoryobligations" (Gertler v Goodgold, 107 AD2d 481, 486 [1985], affd 66NY2d 946 [1985]; see Education Law § 214; see also Maas v CornellUniv., 94 NY2d 87, 92 [1999]).
Accordingly, a proceeding pursuant to CPLR article 78 may be commenced toreview whether an administrative determination reached by a private university "wasmade in violation of [*5]lawful procedure, was affectedby an error of law or was arbitrary and capricious or an abuse of discretion, includingabuse of discretion as to the measure or mode of penalty or discipline imposed" (CPLR7803 [3]; see Maas v Cornell Univ., 94 NY2d at 92).
Since determinations regarding a student's academic qualifications "rest in most casesupon the subjective professional judgment of trained educators, the courts have quiteproperly exercised the utmost restraint in applying traditional legal rules to disputeswithin the academic community" (Matter of Olsson v Board of Higher Educ. of Cityof N.Y., 49 NY2d 408, 413 [1980]). "Suspension or expulsion for causes unrelatedto academic achievement, however, involve determinations quite closely akin to theday-to-day work of the judiciary" (Tedeschi v Wagner Coll., 49 NY2d 652, 658[1980]). "Recognizing the present day importance of higher education to many, if notmost, employment opportunities, the courts have, therefore, looked more closely at theactions of educational institutions in such matters" (id. at 658; see Klinge vIthaca Coll., 244 AD2d 611, 613 [1997]).
"When, as here, action taken against a student is predicated upon grounds unrelatedto academic achievement, the operative standard requires that the educational institutionproceed in accordance with its own rules and guidelines" (Matter of Rizvi v NewYork Coll. of Osteopathic Medicine of N.Y. Inst. of Tech., 98 AD3d 1049, 1052[2012]). In situations involving nonacademic discipline, when a university "acts withinits jurisdiction, not arbitrarily but in the exercise of an honest discretion based on factswithin its knowledge that justify the exercise of discretion, a court may not review theexercise of its discretion" (Matter of Carr v St. John's Univ., N.Y., 17 AD2d 632,634 [1962], affd 12 NY2d 802 [1962]; see Dalton v Educational TestingServ., 87 NY2d 384, 398 [1995]; Matter of Rizvi v New York Coll. ofOsteopathic Medicine of N.Y. Inst. of Tech., 98 AD3d at 1052; Matter ofColeman v Hackley School, 251 AD2d 328, 328-329 [1998]; Matter of Galiani vHofstra Univ., 118 AD2d 572, 572 [1986]).
However, the decisions of educators are not completely immune from judicialscrutiny, and courts "will intervene if an institution exercises its discretion in an arbitraryor irrational fashion" (Matter of Olsson v Board of Higher Educ. of City of N.Y.,49 NY2d at 414), such that "the bounds of discretion were exceeded" so as to constitutean abuse of discretion (Matter of Pell v Board of Educ. of Union Free School Dist.No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222,232 [1974]). Even where a finding of guilt is confirmed and punishment has beenimposed, a punishment that is so disproportionate to the offense, in the light of all thecircumstances, as to be shocking to one's sense of fairness, will not be upheld (see id.at 232).
Here, St. John's Law School premised its determination to rescind Powers'sadmission on the ground that he failed to disclose, in response to the questions containedon the application for admission, that he would "sometimes sell drugs to others" and thathe had originally been charged with distribution of a controlled dangerous substance.The email message rescinding his admission also stated that Powers had admitted to St.John's Law School that he was, in fact, guilty of the distribution charge, even though hehad ultimately pleaded guilty to a lesser charge pursuant to a plea agreement.
However, the application for admission did not ask potential students to disclose anyand all potentially criminal behavior, or seek to compel disclosure of every unchargedcrime that an applicant may have engaged in during the course of his or her lifetime.Rather, the application prompted applicants to disclose charged offenses: "Haveyou ever been charged with, pleaded guilty to, or been found guilty of any crime, offense,or violation." Accordingly, by its own terms, the application for admission did notrequire Powers to disclose any uncharged crimes, and St. John's Law School could notcite Powers's failure to disclose that he would "sometimes sell drugs to others" as amisrepresentation or omission in his application for admission (see Matter of Rizvi vNew York Coll. of Osteopathic Medicine of N.Y. Inst. of Tech., 98 AD3d at 1052;see generally Matter of ClaudiaE. v Ryan, 61 AD3d 865, 865-866 [2009]; Matter of D'Alessandro v West Hempstead Fire Dist., 53 AD3d576, 577 [2008]).
Similarly, with respect to charged crimes, the application only sought disclosure of"the nature of the offense, the dates and courts involved, and the penalty imposed, ifany." Nothing [*6]in the application required Powers totake a position as to whether he was actually guilty of charges that were later dropped orof which he was later acquitted. The fact that four deans of St. John's Law School wereable to elicit such information from Powers at a subsequent meeting does not render hisfailure to provide such information in his application a misrepresentation or omission.Accordingly, to the extent that the determination of St. John's Law School was premisedupon Powers's failure to disclose information that was not requested in the applicationfor admission, it was arbitrary and capricious (see Matter of Rizvi v New York Coll.of Osteopathic Medicine of N.Y. Inst. of Tech., 98 AD3d at 1052; see generallyMatter of Claudia E. v Ryan, 61 AD3d at 865-866; Matter of D'Alessandro vWest Hempstead Fire Dist., 53 AD3d at 577).
In support of its determination, St. John's Law School additionally cited Powers'sfailure to disclose that he had originally been charged with distribution of a controlleddangerous substance. In this regard, it is undisputed that Powers adequately disclosedthat he had been arrested in connection with a drug sale, and that he subsequentlypleaded guilty, pursuant to a plea agreement, to possession of a controlled dangeroussubstance in the third degree, in violation of NJ Stat Ann § 2C:35-10 (a) (1). St.John's Law School nevertheless contends that Powers's response gave it "the distinctimpression that his arrest related to his purchase of drugs for his own personal use, not tosell or distribute to others." Since the application for admission asked whether Powershad "ever been charged with . . . any crime, offense, or violation," and sincePowers's response did not clearly indicate that he had been charged with distribution of acontrolled dangerous substance, this aspect of the determination by St. John's LawSchool—that Powers failed to adequately disclose all of the crimes with which hehad been charged—cannot be deemed arbitrary and capricious under thedeferential standard applied in the context of these proceedings. However, since thedetermination of St. John's Law School was based, at least in part, upon theimpermissible grounds cited above, the determination must be annulled and the matterremitted to St. John's Law School for a new determination without regard to thoseimpermissible grounds (seeMatter of Fairchild Corp. v Boardman, 56 AD3d 778, 779-780 [2008]).
Assuming that Powers's failure to disclose that he had been charged with adistribution offense constituted an omission under the terms of the application, St. John'sLaw School deviated from the terms of its application when it rescinded Powers'sadmission after he had been admitted to the school and after he had successfullycompleted three semesters of course work. The application for admission set forth thepenalties to be imposed for failing to adequately disclose requested information: "thefailure to provide truthful answers to any of the application questions . . .may result in denial of admission, dismissal, or rescission of an awarded degree from St.John's University of Law." The three penalties reflect remedies pertaining to students atvarious stages of their academic careers: those who were not yet admitted, those whowere admitted and who were working towards a degree, and those who had alreadycompleted their studies and obtained a degree. As an admitted student in the midst of hisstudies, the appropriate remedy for Powers's omission, if any, would have been dismissal.Instead, St. John's Law School decided to impose a much more serious penalty, one thatwas not set forth in the application, the rescission of an admitted student's admission.
Unlike the penalties set forth in the application, the penalty of rescission, as that termis commonly defined, would retroactively undo Powers's admission and void his entireacademic existence at St. John's Law School. Nothing in the application indicated that St.John's Law School would be permitted to retroactively deny a student admission andthereby take away credits that had already been earned. Nevertheless, St. John's LawSchool takes the position that, in light of its determination, Powers was, in effect, never astudent at its institution. Presumably, the credits that he had concededly earned are nowvoid and not subject to transfer to another school. Although such a penalty would appearto entitle Powers to reimbursement for any tuition and expenses incurred as a result of hisadmission, there is no indication in the record that he was ever so reimbursed orotherwise put back into the position he was in prior to his admission. The failure of St.John's Law School to impose a penalty in accordance with the terms of its application foradmission, and its decision to impose an undisclosed punishment that goes far beyondthose that were set forth, is arbitrary and capricious and in violation of St. John's LawSchool's own established policy and procedure, as set forth in the application foradmission (see Matter of Rizvi v New York Coll. of [*7]Osteopathic Medicine of N.Y. Inst. of Tech., 98 AD3dat 1052; cf. Matter of Mitchell v New York Med. Coll., 208 AD2d 929, 930[1994]). Accordingly, it cannot be upheld.
Furthermore, it has been recognized that judicial review of an administrativedetermination may be impossible where the administrative determination employs vagueand conclusory language (seeMatter of Vaello v Parole Bd. Div. of State of N.Y., 48 AD3d 1018, 1019-1020[2008]; Matter of Prout vDennison, 26 AD3d 540, 541 [2006]). Accordingly, to the extent that thelanguage of the determination stating that Powers's admission was "rescinded" has ameaning other than the meaning commonly applied to that term, the impact of thedetermination is vague and uncertain. Accordingly, to the extent that the punishmentimposed by St. John's Law School is unknown, this Court cannot perform its duty toassess whether the punishment constituted an abuse of discretion (see Matter of Pell vBoard of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck,Westchester County, 34 NY2d at 232). In other words, this Court cannot assesswhether the penalty imposed "was so disproportionate to the offense, in light of all thecircumstances, as to be shocking to one's sense of fairness" (id. at 233 [internalquotation marks omitted]), unless it can determine the nature of the penalty imposed.Under such circumstances, the determination cannot be upheld.
Quite apart from the terms of the application itself, Powers also maintains that St.John's Law School failed to apply its own grievance procedures, as set forth in its studenthandbook. As a general matter, Powers is correct in asserting that St. John's Law Schoolwas required to act in accordance with its own rules and guidelines (see Matter ofRizvi v New York Coll. of Osteopathic Medicine of N.Y. Inst. of Tech., 98 AD3d at1052).
St. John's Law School issued a student handbook to Powers, and his applicationindicated that its terms were made binding upon him upon his admission. The handbookstated that "[h]igh standards of integrity, honesty and candor are required not only in theformal course setting . . . but also in all law school and Universityrelationships and interactions." The handbook set forth grievance procedures which wereto be applied "to conduct or acts of a student who . . . is charged with aviolation of th[e] Code [of student responsibility.]" The procedures entitle a student tonotice of the alleged violation and a hearing before a committee composed ofrepresentatives of the student body, the faculty, and the administration.
St. John's Law School contends that it was not required to afford Powers theprocedural protections afforded by the student handbook since his alleged omissionrelates to conduct which occurred before he was a student such that it does not constitute"conduct or acts of a student." In support of its contention, St. John's Law School relieson Matter of Mitchell v New York Med. Coll. (208 AD2d at 930). In that case,this Court concluded that a student was not entitled to a formal hearing, as provided in astudent handbook, since the misrepresentations committed by the student occurred priorto his admission to the school (id.). However, in that case "the settled policy andpractice of the school [was] to summarily dismiss any student who engage[d] in suchmisrepresentations" (id.).
Here, the record reveals that St. John's Law School does not summarily dismiss anystudent who makes a misrepresentation or omission on his or her application foradmission. Rather, the Assistant Dean for Students-Designate affirmed that "whenever astudent advises the Law School that there was an omission or misstatement on their LawSchool application, I direct the individual to provide a written request to amend orsupplement his or her application, along with the new or corrected information and thereason why it was not disclosed at the time of application. This does occur frequently,and is most prevalent when students take their professional responsibility classes. In fact,on average, I meet with approximately three to five students per week who wish toamend their applications." [*8]The record demonstratesthat, in all but two cases, students were permitted to amend or supplement theirapplications for admission. Moreover, students were routinely permitted to amend orsupplement their applications to include criminal convictions involving alcohol orcontrolled substances.
The record thus reflects that students sought to amend their applications almost as amatter of course in connection with their professional responsibility classes. Moreover,the decision to permit students to amend or supplement their applications involvedconsideration of submissions and explanations set forth by the students while they werestudents. The decision of St. John's Law School to incorporate this procedure into thecurriculum and to consider conduct undertaken after the students had been admitted,makes this case distinguishable from the situation in Matter of Mitchell v New YorkMed. Coll. (208 AD2d at 930), and renders the provisions of the student handbookapplicable to any punishment imposed for a student's failure to adequately request leaveto amend their applications pursuant to the de facto procedure established by St. John'sLaw School (compare id. at 930). Accordingly, Powers was entitled to thebenefit of a hearing and the other procedural safeguards afforded to the students of St.John's Law School. Since Powers was not afforded these procedural protections, thedetermination to rescind his admission must be annulled for this reason, in addition to thereasons previously delineated (see Matter of Rizvi v New York Coll. of OsteopathicMedicine of N.Y. Inst. of Tech., 98 AD3d at 1052).
The revelation that every week, three to five students successfully seek permission toamend or supplement their applications for admission so as to disclose, among otherthings, criminal convictions, further indicates arbitrariness in the determination of St.John's Law School. While St. John's Law School routinely permitted other students toremedy deficiencies in their initial application through amendments or supplements, andactually invited Powers to submit additional materials, St. John's Law School effectivelyignored the supplemental materials that Powers provided and stated that its determinationto rescind Powers's admission was based on his failure to provide truthful answers in hisapplication. To the extent that St. John's Law School effectively ignored thesupplemental information that Powers provided and punished him based on the findingthat he did not fully and truthfully provide the requested disclosure, its determination wasarbitrary and capricious since it routinely permitted other students to remedy deficienciesin their initial application through amendments or supplements and gave no explanationfor its disparate treatment of Powers (see generally Knight v Amelkin, 68 NY2d975, 977 [1986]; Matter of Boutv Zoning Bd. of Appeals of Town of Oyster Bay, 71 AD3d 1014, 1015[2010]; Matter of Corona RealtyHoldings, LLC v Town of N. Hempstead, 32 AD3d 393 [2006]).
Only after its determination was challenged in court did St. John's Law School seekto distinguish Powers's situation from those of the multitude of other students permittedto remedy deficiencies in their initial application through amendments or supplements. Inthis regard it sought to rely on an unwritten policy which appeared nowhere in either theapplication for admission or the student handbook. In this regard, the Assistant Dean forStudents-Designate affirmed that, "as an institution, the Law School does not admitapplicants whose history includes a criminal record for drug dealing." However, thisrationale for distinguishing Powers's application from those of other students who failedto disclose criminal convictions is unavailing. St. John's Law School's policy, as it ispresented in the record, only pertains to students whose criminal history includes thedistribution of drugs. Powers, however, does not have any such criminal history. Theonly omission made in his application pertained to a criminal charge ofdistributing a controlled dangerous substance. There is nothing in the record to indicatethat St. John's Law School categorically denies admission to any student who has everbeen accused of distributing controlled substances. Such a policy would, in alllikelihood, be arbitrary and capricious since it would be based solely on accusation ratherthan fact (accord Matter of Basile v Albany Coll. of Pharm. of Union Univ., 279AD2d 770 [2001]). Furthermore, to the extent that St. John's Law School relied uponsubsequent statements elicited from Powers indicating that he actually committed crimesother than the one he was convicted of, as previously indicated, such disclosures werenot required by the application and, thus, cannot constitute an omission. Accordingly, thepolicy of St. John's Law School to deny admission to applicants with a criminal historyof dealing drugs is inapplicable to the facts of this case, and cannot serve to justify thedisparate punishment received by Powers (see generally Knight [*9]v Amelkin, 68 NY2d at 977; Matter of Bout vZoning Bd. of Appeals of Town of Oyster Bay, 71 AD3d at 1015; Matter of Corona Realty Holdings,LLC v Town of N. Hempstead, 32 AD3d 393 [2006]).
In sum, it has been recognized that an implied contract exists between a student andan institution of higher education (see Matter of Rizvi v New York Coll. ofOsteopathic Medicine of N.Y. Inst. of Tech., 98 AD3d at 1052). "The essence of theimplied contract is that an academic institution must act in good faith in its dealings withits students" (Matter of Olsson v Board of Higher Educ. of City of N.Y., 49NY2d at 414).
Here, St. John's Law School violated its own procedures and did not deal fairly withPowers when, in rescinding his admission and retroactively voiding three semesters ofcourse work, it imposed a sanction far beyond those set forth in the application or thestudent handbook. Although Powers's omission may have warranted a punishment, thedetermination to impose the penalty here was arbitrary and capricious and in violation oflawful procedure. Accordingly, Powers's petition to review the determination of St.John's Law School, dated September 10, 2010, which rescinded his admission to St.John's Law School, should have been granted, and the determination should have beenannulled.