Opposition Brief — New Orleans Baptist Theological Seminary v. Babcock

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JOSEPH F. SPANIOL, JR.

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VERSUS NO.

RUDOLPH G.

ON FOR WRIT OF CERTIORARI

TOC THE HONORABLE, THE CHIEF JUSTICE

AND THE ASSOCIATE JUSTICES OF THE

COURT OF THE UNITED STATES:

Rudolph G. Babcock, Respondent, submits that this Court

should not grant New Orleans Baptist Theological Seminery's

"NOBTS" or "School") Petition for Writ of Certiorari for the

following reasons:

First, the School's Petition does not satisfy the

standards of Supreme Court Rule 10. That is, the decision of the

Fourth Circuit Court of Appeals for the State of Louisiana does

not conflict with any other state or federal decision, and does

not raise an important issue of federal law.

Second, and related to the first, the dispute herein is

a simple one that has been blown way out of proportion by the

School. That NOBTS has tried to make a mountain out of a mole

hill is evinced by the following indisputable facts:

(A) NOBTS sought accreditation from the Southern

Association of Colleges & Schools (SACS

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ACS equired NOBTS O include a due process

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Pursuan hereto, the School promulgated

discivlinary standards including the right to

discipline (expel) in the event cf separation or

(D) The School allegedly expelled Babcock because he

was separated or divorced without adherence to the

§- Babcock neither wasS nor 1S separated or divorced

F The Schoo accordingly, entered into a consent

judgment injunction resulting in the

reinstatement of Babcock;

(G Babcoc} then néeisputably and Satisfactorily

ompleted his studies over the next two years;

The School, nevertheless, refused to award Babcock

his degree, claiming that Babcock was not fit for

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prohibited the

School; and

) The School never appealed the consent injunction

which it, in fact, drafted.

For reasons more fully set forth in the decision of the

Fourth Circuit itself (Petitioner's Exhibit A-1), as well as the

Briefs submitted by Respondent to the Louisiana Fourth Circuit

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sLLIS B. MUROV [Bar # 98

DEUTSCH, KERRIGAN & STIL

755 Magazine Street

New O.:leans, LA 70

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Telephone: (504) 581-5141

Attorneys For Rudolph G. Babcock

SERVICE

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CIVIL DISTRICT COURT FOR THE .ARISH OF ORLEANS

STATE OF LOUISIANA

wo. 2 2-) D087 DIVISION *"§" DOCKET NO.

RUDOLPH G. BABCOCK

VERSUS

NEW ORLEANS BAPTIST

THEOLOGICAL SEMINARY

PILED |

DEPUTY CLERK

PETITION FOR SPECIFIC

PERFORMANCE AND INJUNCTIVE RELIEF

Petitioner, Rudolph G. Babcock, through undersigned

counsel, with respect represents

Rudolph G. Babcock is an individual of the full age

of majority residing and domiciled in Orleans Parish with his

wife, Suzanne Babcock.

Defendant, New Orleans Baptist Theological Seminary

("School"), is an educational institution located in Orleans

Parish.

BACKGROUND

Suzanne and “Rudy” Babcock were married in December |

1983. They have never separated and are still married and

living together as husband and wife.

EXHIBIT

A -|

In August 1985, Plaintiff entered the School to pur-

sue a Masters of Divinity degree in marriage and family coun- |

seling. |

The terms and conditions of Plaintiff's educational

tenure are set forth in a student handbook. The School has a

Givorce policy calling for withdrawal in the event of “separa-

tion and/or divorce." A copy of the cover page of the student

handbook as well as the School's divorce policy and its “Due

Process for Handling Conduct Situations" is attached hereto as

Exhibit A.

According to the provisions entitled "Due Process for

Ranéling Conduct Situations,” dismissal for, inter alia, sep-

arating from and/or divorcing one's spouse cannot occur until:

(a) The student has been given an initial hearing

with the Executive Vice President (in this case

Dr. Stewart) where he is informed “of all de~

tails of the process" and, if appropriate, pro-

vided with a written, signed complaint;

(b) If the student receives a written, signed com-

plaint, he then has a second interview with the

Executive Vice President (again, Dr. Stewart)

where the alleged violation is discussed and the

student is given an opportunity to submit a

written counterstatement. Additionally, a writ-

ten continuity report must be prepared at this

stage;

| (c) Assuming that the matter is not resolved in

favor of the student at this level, the student

is given the right to read the continuity report

in its entirety before the case is submitted to

a Student Affairs Committee for a hearing at

| which time the student has the right to be pres-

ent along with a representative and any witnes-

ses whom he desires to call. Assuming that the

Student Affairs Committee confirms the discipl-

inary @ecision, the student then has the right

to appeal to the President of the School.

a |

On July 29, 1987, Petitioner was made the beneficiary

of a $400 grant from the Lowrey B. Eastland Memorial Fund for

the fall semester of 1987 ("Grant"). A copy of a letter from

Dr. Don H. Stewart, Executive Vice President, to Petitioner

evincing the grant is attached hereto as Exhibit B.

On August 4, 1987, Petitioner received a letter

("Exhibit C")from Dr. Don BH. Stewart, Executive Vice President,

Stating, inter alia, the following:

(a) A meeting of the Student Affairs Committee was

held on July 31, 1987

(6) At the meeting, Petitioner was accused of having

separated from his wife and considering a di-

vorce;

gram and must vacate the campus where he is 1

ing in his trailer with his wife an

children; and

(2) *The action of the Committee is final. Accoré=-

ing to institutional policy long enforcec, the

possibility of returning to this Seminary is

virtually non-existent when termination follows

probation.®

Plaintiff has never been on probation and has never

separated from his wife.

FIRST CAUSE OF ACTION

10.

Plaintiff realleges and reavers all allegations con-

tained in paragraphs 1 through 8 above as if repeated herein in

extenso.

Lads

Petitioner has been dismissed from the School in vio-

lation of the contract between Petitioner and the School. In

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partic. .r, Petitioner is not separe ‘ from his wife and has

not been afforded the protections set forth in paragraph 6

above.

12.

Since specific performance is authorized by La. Civ.

Code Arts. 1986 and 1987 and is in fact a favored remedy (J.

Weingarten, Inc. v. Northgate Mall, 404 So. 2d 896 (La.

1981)), Petitioner is entitled to specific performance in the

form of an injunction mandating the School to permit Petitioner |

to register on August 20 and/or 21, 1987 with full use of the

rant and campus facilities for his trailer and prohibiting the

School from dismissing him on the purported grounds of separa-

tion

aVile

SECOND CAUSE OF ACTION

13.

Petitioner realleges and reavers all allegations con-

tained in paragraphs 1 through 12 above as if repeated herein

in extenso.

Registration for the fall semester will be held only

on August 20 and 21 and anyone who does not register then will

not be allowed take classes this fali.

15.

Petitioner is 38 years old. He is in the middle of

his curriculum having entered the School in August of 1985.

Plaintiff anticipates graduating in May of 1989. If Petitioner

is dismissed from the School and disallowed to register, Peti-

tioner's career goals and plans will be disrupted thereby caus-

ing him immediate and irreparable injury and loss. Plaintiff,

therefore, is entitled to a temporary restraining order pro-

hibiting the School from dismissing Plaintiff on the purported

grounds of separation and requiring the School to permit Peti-

tioner .oO enroll on August 20 and/o 21 with the full use of

the Grant and campus facilities for his trailer.

16.

Since registration for the fall semester must be cor-

pleted on August 20 or 21 and since today is August 18, issu-

ance of a temporary restraining order without any notice to the

School is both appropriate and necessary.

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WHEREFORE, Petitioner prays that a copy of this

tion be served upon Defendant and that:

ry restraining order

hi the School from dismissing Petitione

f the purported grounds of separation and re-

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guiring the School to allow Plaintifé

ister on August 20 and/or 21, 1987 and with

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nefit of the Grant and campus facilities fo

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from dismissing

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C. After due proceedings be had, all costs an? at-

torneys' fees to be assessed against Defendant.

ELLIS B. MUROV

DEUTSCH, KERRIGAN & STILES

755 Magazine Street

New Orleans, Louisiana 70130

Telephone: (504) $81-5141

Attorneys for Rudolph G. Babcock

PLEASE SERVE:

NEW ORLEANS BAPTIST THEOLOGICAL SEMINARY

Through its President and Executi Off

Dr. Landrum P. Leavell

3939 Gentilly Boulevard

New Orleans, Louisiana 70126

= —

CIVIL DISTRIC. COURT FOR THE PARISE OF ORLEANS

STATE OF LOUISIANA

NO. 69° ; 2sViSlON “B" DOCKET NC.

FUDOLPH G. BABCOCK

VERSUS

NEw ORLEANS BAPTIST THEOLOGICAL SEMINARY

PILED:

DEPUTY CLERK

PETITION FOR TEMPORARY RESTRAINING ORDEF,

SNOUNOTIVE RELIEF AND SPECIFIC PERFORMANCE

re tsts eres Rusossen G pa>cock tnrese> neess-gnes

Ccounse., with respec: resresents:

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Russsp: G. Badcock if an inésvi@uai cf the *£u2° sce

~t we--e -- ec: 4-+- --A Anew i* 6a - fe - Sar - - *

ez aseor.cy Fressesng enc Gomiciies is Orieans Paris wie so

wite, Suzanne Babcock.

é welencan:, New Orieans Bapt:s: Thetlog:ca: Ser:nar

"66505; $8 a2 @6u2ationa s5Ststcutcses soezeteé is OCrieaess

Paris?

ELIOK SFO INE

2 Rucc.¢>. Babcock <s a@ Guly macrsculated seuder: ac

4. in August, 1965, Babcock entered the School tc

pursue a Master of Divinity degree in marriage and family

counseling.

-- On August 4, 1987, Babcock received e letter fror

the School's executive vice president expelling him for

having allegeély separated from his wife andéd for considering

éivorce.

6. Petitioner had not separated from his wife and he

Was not consi¢ering divorce. Babcock, moreover, was expelled

EXHIBIT

A- 2 |

without a hearing, in total disregar¢ for the procedures

printed in the student handbook as "due process” for student

Gisciplinary matters.

ae As a resslt, on August 19, 1987, Babcock ¢

for specific performance ané intunctive re.s:et See Nt. &7-

15087. (Exhibit 1).

8. A temporary restraining orcer was grances Ey Jucge

Yada McGee prohibiting the chool from ¢ismissing Babcsorn anc

from interfering with his career goals ané studies.

9. When the cause was to be hearc for the issuance of a

permanent injunction, tne School interposec an excepi.cr

lack of jurisdiction, claiming state interference in churss

matters.

10. Or December 21, 1987, the hearang on tne exeeo cis:

was helc.

1i Cn March 36, i965 ehe extertic: was €:87.55e-2

(Exhibit 2).

iz On May 21, 1968, the parc.es agreeé cc a@ Sor.senc

"inal juégment, wheres; the Schoc., reserving tS F25°°> ==

appea. the juriséi:ctsona. 1.850 agree2 c5 a permane**

iniunetion prohibiting Bascock s diswissa.j “bases upe- a: ~—

his conauct Or attivitsesS OCSurring oF FF befece Auz.8: 3?

1987 " and reinstates his Sonc.arsace ExNse:*

13 The School appealed only the cena. of the Excepre.s=

devolutively. Exhibst 4). The Appeal. :s pencsns See No

89-CA-0232 Fourth Circuit Court of Appea.s As €@ £OSs.2, THe

ral

’

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judgment.

14. Babcock has continued his studies, has completes 4-.-

requirements, anc has received letters, noticcs an¢d

verifications of the imminency of his graduation from tne

public relations office, the executive vice pres:den=. =e

director of housing, the registrar, the president, anc the

Southern Baptist Foreign Mission Board. (Exhibit 5 in g-o>bo

15. On May 9, 1989, the day before Babcock's Appellee 's

Brief was due, counsel for Babcock received a two-line letter

notifying counsel that the School refuses to awarc Babcock §

degree at commencement, May 20, 1989 because if he had been

expelled in August of 1987, he woulée not have earnez his

degree, and be on the May 20, 1989 graduation list. (Exhib

6 and 7).

16. Petitioner has completed Satisfactorily ali

requirements for graduation. The withholding of a degree by

the School breaches the contract which exists between a school

and its students and the School and Babcock.

17. Moreover, the School, having agreed by consent

judgment, approved by this Court May 31, 1988, not to dismiss

Petitioner for any alleged offense which occurred on or before

August 19, 1987, is in violation thereof by its refusal tc

allow Petitioner tc graduate based on the same ailiegec

offense

WHEREFORE, Petitioner prays that a copy of this Petit:on

be servec upon defendant and that:

(a) A temporary restraining order be issued prohibiting

the School from ¢ism:issing Petitioner by refusing to allow hir

to graduate May 20, 1989 and reguiring the School to issuc to

petition the Master of Divinity degree which he has earnec.

(b>) After due proceedings be had, a preliminary and/or

permanent injunction be issued prohibiting the School from

Gismissing Petitioner by refusing to allow him to graduate anc

requiring the School to issue to him the Master of Divinity

degree which he has earned.

attorneys' fees to be assessed against Defendant as a result

of forcing Babcock to bring an action to compel defendant to

honor an order of this Court.

OANNE C. FERRIOT (18209)

DEUTSCH, KERRIGAN & STILES

755 Magazine Street

New Orleans, Louisiana 70130

Telephone: (504) 581-5141

ATTORNEYS FOR PLAINTIFF,

RUDOLPH G. BABCOCK

PLEASE SERV

NEW ORLEANS BAPTIST THEOLOGICAL

Through its President anc Execut:ve Officer

> - . ; oe

Dr. Landrum P. Leavell

«7 . ore | «

3939 Gentilly Boulevard

, Orl - Loui * . 74 26

New - eans, ~ Uisiana Used

——

VAN ne

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All evidence herein having bee presented and

evidence being in favor of piazintifté

a ee in ae since ee hai cna,

IT IS HEREBY ORDERED, ADJIVOGES AND DECREED that

(a bh rtomnerrar: rece*ra:*:(*2 ardor a -_ee a “eae - -

| tempecrary restrain ang Orcer PE s8S8SuUec Ppronsec.t

the School from dismissing Petitiscner By refusing tc allow

to graduate May 20, i985 anc reguiring the Schoc. to issue

petition the Master of Divinity degree which he has earnec

(bd Brte: Gue Proceécines be hac, @ preliminary anc

permanent injunction be issue¢ prohibiting the Schoc. ¢£

Gismissing Pecitioner by refusing to allow him tc gracuacte

reguiring the Schoc. to issue

degree which he has earnec.

attorneys’ fees to be assessed

be had,

against Def

end ee

of forcing Babcock to bring an action to compel

honor an order of this Court.

@as ares

defendant

CIVIL DISTRICT COURT POR THE PARISH OF ORLEANS

STATE OF LOUISIANA

NEW ORLEANS BAPTIST THEOLOGICAL SEMINARY

FILED:

DEPUTY CLERK

VERIFICATION

Before me, the undersigned authority, personally

—— 4 ~ = _ - - - — a -

whe. after being Guly sworn, ¢:¢ ¢Cepose anc states t..6~ :

—+) - ~ ~- ~ - 5 — - -* - "m=

have reac the fcregcing Petition tor sempcrary Res=ralaing

ny - y ad - ~ . 9. - ~ €. < ~rse

Order, Inctunctave Relief anc Specific Persermance, anc <na~

therein are true an¢ correct

(oF

/ ys

Leclab a hah A

eg nr

Sworn to and subscribed

before me this /* day

of May, 1989. 7

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NN UBLIC

CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS

STATE OF LOUISIANA

NO. DIVISION "B" DOCKE™. NC.

RUDOLPH G. BABCOCK

RSUS

VEROve

NEW ORLEANS BAPTIST THEOLOGICAL SEMINARY

DEPUTY CLERK

AFFIDAVIT

Before me, the undersigned authority personaily

came and appeared:

Joanne C. Ferrisot

who, after being duly sworn, @:ic depose anc state 2

compliance with Lou:siana Coce cf Civis Procecuré Art.c.

3692, 2 have hac deiivereé by hane the origina. sf th

attacheé letzer to the cffices of counsel fer the New Ccr.iear

Bapt:st Theolog:cal Seminary, Mr. A. Morgar. Brean

{

~~ — A_ —-r—A,__ * =

JOANNE C. FERRIOT

Gworn to and subscribec

before me this /*_ day

of May, i989.

ens

i 4). liseli tiie dalle - a ay

NOPARY PUBLIC .

ys ee

“i

STATE OF LOUISIANA

COURT OF APPEAL

FOURTH CIRCUIT

aDniahk

CLERK OF Court

NO. 89-CA-0233

RUDOLPH G. BABCOCK

Plaintiff-Appellee

NEW ORLEANS BAPTIST THEOLOGICAL SEMINARY

Defendant-Appellant

Appeal of Civil Proceeding

from the Civil District Court

for the Parish of Orleans

Hon. Robert A. Katz, Judge

Original Brief of Appellee

ELLIS B. MUROV, #9839

JOANNE C. FERRIOT, #18209

DEUTSCH, KERRIGAN & STILES

755 Magazine Street

New Orleans, Louisiana 70130

(504) 581-5141

Counsel for Rudolph G. Babcock

EXHIBIT

A-3

TABLE OF CONTENTS

oT GMMPRMPE@ 6 6 8 8 6 + © © » © © © 6 8 ee ell lw j

ee ee ce ee ee ee ee 2 1

Comuaem StAcermes. OF FACTS . 1. 5 © © © © © © © © eo we ew oe 3

ISSUES TO BE RESOLVED BY THIS COURT ..... 2 «© © «© «© «© « 9

é Babcock Prevailec On The Merits Without A Faght a4

B NOS7S Is A School as

- Characterizations are not dispositive ... . il

‘ The facts show NOBTS is a school ...... iz

¢ Schools Are Subject To The Jurisdictio Cf The

Court In Disciplinary Cases ES

CD The School's Promise Of Fairness In Dealing With

Its Students Was Mace Not Only To Babcock, its

Student, But Also To Other Private Ane Public

Entities For The Benefit Of Babcock; It Cannot Now

Refuse To Abide By Its Promise 2°

E. Babcock's Expulsion By The Student Affairs

Committee Does not Involve Excessive Entanglement Z2

oy MB RS aS CT a a a a a 2i

ya "Establishment Clause” principles ...... 22

as mepeboemae StAtutes . «5 » 6 we ts eh ee te we 22

S. Contracts have a secular purpose ...... 22

2 Contractual Articles neither promote nor

Bama SOzseeeus GEtAvVity . 6 lk tll kl tlt lt

6. Contractual Articies do not foster an

excessive government entanglement with

POIDENDU™

religion because breach of and nonadherence

to agreements is not a tenet of the Baptist

faith . . . . . . . . . . . 7 . . . . . . .

ax Babcock's expulsion did not involve a matter

of internal church discipline/a religious

question . . . . . . . . . . . . . —_ . . . .

Review of Babcock's Expulsion By The Student Affairs

Committee Does Not Infringe Upon The Free Exercise

Religion . . . . . . . . +. > . . . . . . . . . > .

ame CORBET CUEAORS «6 ok se Kk we lk ke

2. "Free exercise" clause principles ......

a. Applicable statutes and principles .....

4. Contractual Articles do not infringe upon the

free exercise of religion as nonadherence to

contracts is not a religious belief of the

BADGae. Seen & as «ao, & See ke eo ee

SYLLABUS

Characterizations are not dispositive. E. g., Commissioner

v. Culbertson, 337 U.S. 733 (1949) and cases cited at pp.

10-11.

NOBTS is a school based upon the facts and not the

Characterizations.

As a school, NOBTS' reiations with its students are

basiceliy contractual and may thus be reviewed by the

courts, especialiy in disciplinary matters. E. G., Fusseil

Vv. Louisiana Business College of Monroe, 478 So.2d 652 (La.

Apr. 2c Cir. i985); Lexington Theological Seminary v. Vance,

596 S.wWw.z2d 11 (Ky. App. 1979), and Tedeschi v. Wagner

College, 427 N.Y. Supp. 24 760 (N.Y. App. 1986) and cases

Where a school makes asSSurances to other entities in

exchange for valuable consideration and for the benefit of

its students, it cannot refuse to honor those assurances.

La. Code Civ. Art. 1967 and Lemon v. Bossier Parish School

Boarc, 240 F.Supp. 709 (W.D. La. 1965), affd, 370 F.2d 84,

cert. deniec, 388 U.S. 911 (1967).

Contracts are secular in nature, and the interpretation of

contracts does not entangle the courts in ecclesiastical

matters. Jones v. Wolf, 443 U.S. 595 (1979). Fluker

Community Church v. Hitchens, 419 So.2d 445 (La. 1982),

LeBlanc v. Davis, 432 So.2d 239 (La. 1988).

Since breach of contract is not a tenet of the Baptist

1, NOBTS' actions are not immune from review by the

Civil courts. See E.E.0.C. v. Miss. College, 626 F.2e€ 477

(Sth Cir. 1977), Brown v. Dade Christian Schools, Inc., 556

F.2d 310 (Sth Cir. i977), Gert. gensee, €34 U.S. i963

(1976). Fiecier v. Marumsco Christian School, 631 F.2a

1144 (4th Cir. 1980); Lexington Theological Seminary v.

Vance, supré

CONCISE STATEMENT OF FACTS

a) Rudolph G. Babcock ("Babcock") is an individual of

the full age of majority residing and domiciled in Orleans Parish

with his wife Suzanne Babcock. Plaintiff's Petition for

Specific Performance and Injunctive Relief, par. 1.

b) Babcock became a licensed minister of the Baptist

Church long before entering New Orleans Baptist Theological

Seminary, hereinafter referred to as "NOBTS" or "the School." R-

e) Suzanne anc "Rudy" Babcock were marriecé ir

December, 1983 Tney have never separated and are still married

and living together as husband and wife Pilaintiss’s Perieion

for Specific Performance and Iniunctive Relief, par. 3

CQ ) in August, 1985, plaintiff entered the School cc

pursue a Masters of Divinity degree in marriage anc family

counseling rather than to become a minist r.i Pisi nts <s*s

Petition for Specific Performance and Injunctive Relief, par. 4

R-III, p. 1&9

e ) The terms and conditions of plaintifé's

educational tenure are set forth in a student handbook ane in the

i/ Babcock's matriculation into the School's Division of

Pastoral Ministries was required by the fact that the School haa

promised a Master of Arts program in that field, Babcock had

begun his studies with that goal in mind, and then the School

withdrew the program. The courses required for the degree are

currently lodged within the Division of Pastoral Ministries. (R-

III, p. 209).

School bulletin.

The School has- a divorce policy calling for

withdrawal in the event of the "separation and/or divorce." Exh.

D-1, bulletin, p. 65.

£) According to the provisions of the

student

handbook entitled "Due Process for Handling Conduct Situations,"

dismissal for, inter alia, separating from and/or divorcing one's

spouse cannot occur until:

—

The student has been given an

initial hearing with the Executive

Vice President (in this case Dr

Stewart) where he is informed "of

all details of the process" and, if

appropriete, providec with a

written, signed complaint;

I# the student receives a written,

signec complaint, he then has a4

secone interview with the Executive

Vice President (again, Dr Stewart)

where the alleged violation is dis-

cusseé and the student is given an

opportunity to submit a written

counter-statement. Additionally, 4

written continuity report must be

prepared at this stage;

Assuming that the matter is not

resolved in favor of the student at

this level, the student is given

the right to read the continuity

report in its entirety before the

case is submitted to a Student

Affairs Committee for a hearing at

which time the student has the

right to be present along with a

representative and any witnesses

whom he desires to call. Assuming

that the Student Affairs Committee

confirms the disciplinary decision,

the student then has the right to

appeal to the President of the

-4-

School. Plaintiff's Petition for

Specific Performance and Injunctive

Relief, par. 6; Exh. D-2, _ pp.

26-27.

g) On August 4, 1987, petitioner received a letter

from Dr. Don H. Stewart, Executive Vice President, stating,

inter alia, the following:

(a) A meeting ,of the Student Affairs

Committee=’ was held on July 31,

1987;

(b! At the meeting, Petitioner was

accusecé of having separatec from

his wife and considering a divorce;

his degree program and must vacate

the campus where he is living in

his trailer with his wife anc two

children; and

(6) “The atcct.on of the Committee is

final Accorée€ing to institutional

policy long enforced, the possi-

bility of returning to this

Seminary is virtually non-

existent when termination follows

probation."

Plaintiff's Petition for Specific Performance and Injunctive

Relief, par. 8.

2/ The Student Affairs Committee is composed of the Executive

Vice President, the Vice Presidents for Academic and Business

Affairs, Director of Admissions, Academic Counselor, Faculty

members (4) and students (2).

h) Plaintiff has never been on probation and has

never separated from his wife. Plaintiff's Petition for Specif

Performance and Inj}

i) On August 19, 1987, Babcock sought and was awarded

a Temporary Restraining Order enjoining the School from

interfering with his right to register for fall semester classes.

R-I. Prior to the hearing on the request for permanent

: mo . - ;

n> net a NOB neornncan = "oO mrneHeary rRORe a aAr wt ary o~4

i uUncTION, NOBTS interposed 2a peremptory exception OL s4atKH Ls

é ~~ < * a a " * « +

- 4 + ~r ~ ~ no ~ t c rR rer ne — . re oe ~~ --+ y rc

jurisdiction, claiming it was a church an the subject matter of

“he rts r+ ++ a Ss - c ahr - rhe n+ rns) ~¢+ez rc ~¢

‘< S hy-Ge- --- _ “us -- GEGiyYur < = + cernadld Gast Gas © ~

hen = c*+y,ys* . ~ + we r aa eel. Ta E = _—+ ar ‘ i maar

aagmanisvtricw. Ox sneSters tne XCEDLION Was learec

Morea7rn7pe, Of ar - os eccer NMNarcr i QRR Det 7

MoO UCGCsiwSs pe aA7ue ’ a _ OPS re ee 20, e/70wv a=

- > he —— - + + + ne sc nae = -~r atten ~ --

J VOUS 4 admits tnat 1t does ot nave tne power er

ArdGain or to expe minierare So.TTT nr Ct he = Bahk-o-

~~ we > ~- ~ = —— ~ ~— —— — --~---*> 7 ae od ~ ~~ Daw Uv hr -

- Ie ~r ~-~r > +r+ _- nn + — - 4 ~ + eo ~ - cr rsa) ~ a e+e

expuis.on, crnerezrore, 0 3 + C Ot @artecr 11S ministeriai Status

- ~_-- c-

iol T ~

+ ~-~- 7 od ~~ &

AIARc¢ c ~ 7. a+ Arms) _. - - ~ ar -~—- a+ = - - on

¥ NUBLS 18S a ecucational ianstitur 1° accrec.tec i

mr > = a + CA) ) - | " > in

ae _ ia rr cr — ar =~ an - cCrnar c { “ c

Tne Soutner ASSociatlo os Colleges anc scnoossS | oSeAevee ,

-~r r o ar = -_-err ~ + no new + r al + - al Co Cod oo +

the regional accreditin 3 agency for all institutions of

private, in the southern region. (R-III, pp. 69-70). The School

is regularly reviewed by S.A.C.S, anc is required to abide by the

same standards as all other accredited schools in order to keep

urse, that the Student Affairs Committee

1 ministers.

-6-

its accreditation. (K-III, pp. 70 & 90.) These standards

include adherence to academic freedom (R-III, p. 91 and Exh. P-l,

SACS Criteria), and a broadly promulgated statement of procedures

in student disciplinary matters. (R-III, p.93 and Exh. Pel).

Babcock was expelled without adherence to the latter. (R-III,

p.93, printed in the student Handbook, Exh. D-2, pp. 26-27.).

1) New Orleans Baptist Theological Seminary awards

many of the same decrees as do Duke University, Harvareé

University anc the University of Alabama, e.g the Master of

Religious Ecucation, Master of Church Music, Doctor of Musical

Arts, Doctor of Tneology, and Doctor of E¢ucation degrees

(ReIII, pp. 94-97 Course credits earned at New Orleans Baptis«

Thecliogical Seminary are transferable tc other secuiar

institutions of higher education NOETS accepts crec:ts earnec

at other secular institutions (ReIIi, pr 103-104) The

Schoc issues graces and utiiizes the semester system (Relead,

Pp. 104).2

4/ Tne Schocl's students have library privileges at Dillard,

UNO and Tulane University. (R-III p. 104). Among the courses

offered by the School and included in Babcock's curriculum are

Stress Management, Human Development, Behavioral Family Therapy

and Mental Disorders and Treatment (R-III pp. 178-79). Other

courses offered include Orchestration Techniques, Eighteenth

Century Counterpoint (R-III p. 138), Foundations in Educational

Psychology and Social Work Institutions. See NOBTS Bulletin, pp.

105 et seq. In Appellant's desperation to characterize

everything as_ religious, Dr. Stewart said that degree

requirements of research methodology anc statistics had a wholly

religious purpose. (R-III, pp. 99-100).

m ) Tne School's officers

clude a

Academic Affairs, Vice-President for Business

of Development, a Director of

oe)

—

Cc)

on both federal and state governments in pursul

Admissions

Vice-President

Affairs,

and

a Dire

for

Registrar.

Seminary depends

ng its educational

mission For instance, it obtains authority t grant

from the State of Louisiana (R-III, p.71). Like other scho

NOBTS py: ides extensive data on both faculty and students to

fencra” oc ‘A —hahates! aha Kerr ar at = State ~+ LO Siané , a rea

federa. 2verrmme rougn the State of Louisiana, vie 5

submission of sucn data to a program callec the Intecrated

Seconéary Ecucation Data Systems ("IPEDS") (R-3, p 86 anc

P-< IPEDS recu:res information as to the School’s i

expencitures an¢ lé:ngs as to the sex, rank, sélaries

fringe benefits cf its faculty as to the number and types

; }

Gegrees it awards as tc student fees, cost of books anc

charges 6 to the race, sex and matriculation status

students Exr P-2(a),(D5D

O The School's dependency also involves certif

tion of its tudents to the federal

government

Guaranteed Student Loans may be deferred

so as to facilitate their receipt

assura

@-R-

R-III, p. 75-76).

—

(R-III,

funds

so that

PP.

84-85)

)

anc

from the Veterans

The Veterans Administration

its

student

handbook

mick

wnhicn

School has done. The School is ready and willing to open its

books to governmental entities at any time such would be

necessary for the School to retain its accreditation or

eligibility for interest deferrals on Guaranteed Student Loans

and for Veterans Administration benefits to accrue to its

students. (R-III, pp. 159-160).

ISSUES TO BE RESOLVE

ee —

By THIS COURT

-_r “ -.1+¢ ~>4 = As eh a - +) - > > Asc

a) Is 1 institution which (1) has students (2) has

rr ~, moce rc $ars: i e+ - War | “+ + A :

courses semesters, facusty, a Vice President of Academic

€$€Eanive - Qo Drocirfone at "pe $Eair nA - LC nh ea

Affairs, a Vice Presicent Business Aitftairs and 4 kKegistrar,

a= ~ - ~ ~ = ao » ie ~ =

} as accreciteac Pd $4\- Southern Association @ a LOL.seCGes and

CrRnrnr) {f A - cronec - oa -h ~e— + 7 _ = + ~ -

“ye alone = --_ icensecG » y che — Ee. ae — as al ecucationeadl

-_n"oe - - ~ = nares 7r +> #onroa =) ats ~nmnman- Ma + =

2nstilucios = Eererte coe esere teeeralt Government that it iS a

a na +e 7 — _ - - ~r { - anctore ae n+ _ -~o = = + ~

equcationai instart_e_d she c ates GuuLtee Creaits to ang fro:

.s ‘ =

- ) st —~_> or ey =n - > 7 a a { Ac | — ~ =

wholly secular Couleges anc universities anc awarcs gegrees a4

schoo] nr = cr ren?

web S & a webu we :

ia ve -r Co - a cnn =~ > ~- 4 ma) 7 ee ae eel

5) Does the Soutner Association of Colleges anc

CrAnnsnlic cera - ah *rmnoc “ny cn Alte?

oe ‘ew wd ed ob oD accrecit we bbe whl —) ww + sc Oo0O1S:

5 nes +e _- * > ote ie! . 5 o

Cc) 4S a entity which is requirec to give assurances

of tairness to the federal government and to its accrediting

association in exchange for valuable benefits, a school or a

church?

da) Is NOBTS, which represents itself to the federal

and state governments, its accrediting association, and potential

students as a school, precluded from asserting that it is not 4

-9-

school and acting arbitrarily after a student has relied on its

promise in choosing to enroll at NOBTS?

e ) May a student pursuing a degree in marriage and

family counseling sue the school in which he is enrolled to honor

the promises contained in the student handbook?

f ) Assuming NOBTS is a church, may a student pursuing

a degree in marriage and family counseling sue to honor the

promises contained in the Student Handbook?

g Assuming NOBTS is a church, may the Louisiana

judiciary entertain a suit by a psychology student, based on its

contract with the student or as a third party beneficiary of its

promises to the federai government and S.A.C.S., for expelling

Mim without cue process anc for having separated from or

i) Is breach of or nonadherence to contracts a tener

F } Marercer Chiirerh? = 7 Aai€¢ 5 } ; 7 £

of the Baptist Church? Stated differently, absent involvement of

(Uv

a religious tenet, can there b entanglement or

impairment of the freedom to exercise religion so as to violate

the U.S. and LouiSiana Constitutions?

ARGUMENT

A. Babcock Prevailed On The Merits Without A PFight.

NOBTS never seriously challenged the merits of

Babcock's claim. Rather, the Scnool excepted to jurisdiction,

objected to any evidence even remotely bearing on the merits

being presented (R-III, pp. 105-106) and then sought and executed

a consent final judgment granting all relief sought by Babcock

after the Exception was denied and no wonder.

AAI KN ne Cate _ | . ~ Sa I ~,

Rudolph anc Suzanne Babcock have never separatec cz

jun

B. NOBTS Is A School.

i Characterizations are not dispositive.

NOBTS may choose to call itself a church, Dur

characterizations are not dispositive. Nomen non sufficit Ss:

res non sit de jure aut de facto. See e.g. Nash v. Curette, 215

La. 109, 39 So.2d 840 (1949) (judge granted "Suspensive" appeal

which was only devolutive, given the nature and timing of the

appeal); Due v. Due, 342 So.2d 161 (La. 1977) (husband's naming

2/ NOBTS' claim on page 10 of its brief that it avoided trial

on the merits because of a purported chilling effect on its

constitutional rights evinces a lack of candor.

of contingent-fee contract as "aleatory" does not make it a non-

asset of the community); Commissioner v. Culbertson, 337 U.S. 733

(1949) (characterization of business arrangement as partnership

rejected); Earman Oil Co., Ince. v. Burroughs Corp., 625 F.2d

1291, 1295 (5th Cir. 1980) (without evidence of the anticipated

value of equipment over the term of the "lease", court could not

characterize with certainty whether the transaction was a sale or

a lease) and Holden v. Placid Oil Co., 512 F.Supp. 644 (E.D. La.

1961) (claim of entitlement to recovery for breach of implied

warranty under contract characterizec as a construction contract

ats - =- =7 35 “7 | ~ )

Geciinec aS the contract was in reality one to provide personal

property rather than services, 1.€., 1t was a sale anc the clair

a £ en

was, tnererore, prescripec

a. The facts show NOBTS is a school.

In exchange for accreditation and for certification as

Veterans Administration benefits, one

Sand

}

+ 4

14)

—

—s

of the requirements to which NOBTS had to submit was to provide

assurance that the promulgated procedures for student discipline

would be followed. (R-III, p. 93 and Exh. P-1 and D-2, pp. 26-

27). In consideration for these promises, NOBTS obtained

eligibility for its students to receive Veterans' benefits. (R-

tide Bu Fas Appellee is unaware of any church's eligibility

for Veterans Administration benefits but has personal knowledge

of the fact that schools are. &/ Equally important, NOBTS

received accreditation by S.A.C.S. Appellee iS unaware of

S.A.C.S. having ever accredited a church but based on evidence

adduced is aware that S.A.C.S. does accredit schools.

S.A.C.S. is a quasi-public agency whose approval is of

great value and importance to the institution which it reviews.

NOBTS sought and received S.A.C.S. accreditation. (Exh. Del,

Bulletin at 2, 40). In seeking and receiving regioné-

accreditation, NOBTS has demonstrated its desire to avaii itse.é

e) the man benefits which accrecitation offers Case law is

WH =yr KW ~ ne r w? — a — a -—s * --+- ~

SPE awearc ~) COLseGes be ae = Sian; he asiue ee ee ee

Is 15. + af nr + eh army A . n- secnn - anne tar Waer st wm ~ = < -A =

dawSuitsS against tne accrecsiating associations <r avahsS Terusea

Recognition of this fact has lec one commentator <c

note that "the reputation of an institution, and consequently :ts

ability to operate successfully, can be adversely attectec cy

lack of accreditation." J. A. Rapp, 1 Education Law §306 .<)(a

In Parsons College v. North Central Association of

a ,

olleges anc

Secondary Schools, 271 F. Supp. 65 (N.D. Ill. 1967), a libera:

arts college which lost its accreditation sought an injunction

6/ Prior to coming to New Orleans, Babcock's line of work was

establishing flight schools. As such, he knew firsthand of the

assurances required by the Veterans Administration, being

required to give those assurances on behalf of his flight

schools. (R-III, pages 171-1).

-l]3-

against the accrediting agency.

accreditation "would threaten a

enrollment, a decrease

of some members,"

irreparable harm on the institution.-—

resignation faculty

loss

in the number of new students,

The court found that loss of

of current Student

and the

(Id. at 69)

The purposes of accreditation have been listed by the

+ . $ > .

U. S. Department of Education as follows:

7 \ ‘a = Sass 5 . ae _

1 Certifying that an institution has met establishec

Standards

+ : ~ _ - <- +

2 Assisting perspective students in identifying

acceptable institutions;

5 ASSisting ARSTLITCUELORS an qgetermining cae

~~ ~ a ", + cé ~

acceptability of transfer crecits;

, OP a. on _ 2 » . . 2 £

4 Helping to identify institutions and programs for

— ep — < ~ = $ Eos :

the investment of public and private funds;

S. on ~ ~ =~ s ’ = — + | - =

: Protecting an institution against harmful internal

anc external pressures;

la ~~ ~s 1 y a. € mabe

€ Creating goals for self-improvement of weaker

programs and stimulating a general raising of

Stangards among educational institutions;

Involving the faculty and staff comprehensively in

= 3 J a4 : Py

nal evaluation and planning;

& ) Establishing

certification, licensure,

offering such preparation;

Education Law, § 3.08

Cited in J. Rapp, 1l

7/ The court refused the

committed no wrongful action.

criteria

and for upgrading forces

injunction because the agency

for professional

[l]{a]. The purpose of

had

accreditation furthers the mission and operations of a scho

univers: cv, but not a church.

Given the above and, not Surprisingly, NOBTS represents

itself to all as a school. In its own Bulletin, its principal

medium of representation to the public, (Exh.

States that itS purpose is "to provide quality education.

1) th , + a #5 a id mes $5 ,+ ,¢€ #n??) , nA oT As ce

UsTLaer, at erihnes anh L4GOC@NTIZISS 2tSeizr @S FOL1OwS, @nd in thas

aan | - -eoba nr ru

oraer Of re ove ely

" r 7~ ~ ~ = venta) = - " -h

Ai an acacem.c Community, Ge 36:

4 %. Aesnam: nati ans? neanew ” ana ar hen

| < a wa’ © 5 2sitGvawwviisGae age ~Jyr Gosue wise we 646 od

~ "win wecr n< — -*!

ia S eC LiOwSn.p Of Fait

7 a e+ *~ + ~~ asaeer rRKToprn?e — a: —— en ae ~yea = ~ —

ware, wu - hot saGast » NOSTS a stCe wu — we wA wes two

— Rahkane Evan +> ms * = mat whrhtah Ke se alreasay a manmhar

GAPE L SA@DCOCK IFO Cte MIR SrcLyY OL. WALA € was alreacy a Ome =

T +} th = FArD fa 7 A 4 + e~rKAB - Aane xe = - > oo -|55 — -

It, therefore, foliows that the Stucent Atiairs Committee coucc

> - ~

_ - - rcs - ~e ~pD anRA ram -h mo, --+y anener :_=

neither Orcacn not expe. DaWeCQOTCA ~s+ - e - - > --+ 3 Soa vu *. ——

- ; a + =7 ah rer +~nhKs + a ~ - Aane -<-s rec Awe ee = —— ste

unaware O any cnut Chat NaS a SCUGENT Blt alrs Comreccee UNsess

4 5

+> no KAS) Se " mAs Sch = ' Cr 72 =A ee oe ee sc:

one 1S talking about "Sunday choo. College anc Univers:ities

+ Ar farms ea) ye watro + Aarne = 4 rc am Amm see ~~

ee COuUzrSse, ~Y ho Gis} lave STUGENT Q@.:zraizrs CoOomuactrees

Cc. Schools Are Subject To The Jurisdiction Of The Court In

Disciplinary Cases.

Courts have not hesitated to hear disputes between

schools and their students. These disputes are generally either

academic or disciplinary. Considerable deference has been given

by the courts to actions resulting from the application of

academic judgment.

The courts, however, have taken a different stance

when a disciplinary matter is at issue because "Suspension or

expulsion for causes unrelated to academic achievement...involve

determinations quite closely akin to the day-to-day work of the

judiciary . . . [and] courts have, therefore, looked much more

closely at the actions of educational institutions in such

matters." Tedeschi v. Wagner College, 404 N.E. 2¢€ 1302, 1304

(N.Y 195° See also Goss v. Lopez, 419 U. S. 565, 95 S. Ct.

729, 42 L. Ec. 26 725 (1975); ane Fussell v. Louisiana Business

College of Monroe, Inc., 478 So.2d@ 652 (La. App. 2d Cir. 1985).

Moreover, there is an abundance of authority holding 1)

hat an institution is bounc by its own published rules nd

procedures concerning student discipline and 2) that dismissals

ay be neither arbitrary nor capricious. Slaughter v. Brighan

Young University, 514 F.zd 622 (10th Cir. 1975), cert. deniec 423

U. S. 898 (1975); Lexington Theological Seminary v. Vance, 596

S.W. 2€ 11 (Ky. App. 1979); Tedeschi v. Wagner College, 427 N.Y.

Supp. 2d 760 (N.Y. App. 1980); Coveney v. Holy Cross College, 445

N.E. 24 136 (Mass. 1983); Fussell v. Louisiana Business College

of Monroe, Inc., 478 So.2d 652 (La. App. 24 Cir. 1985)8/

8/ The relationship between a student and a= private

educational institution is generally accepted as contractual.

That is, in consideration for the performance of certain

(continued...)

-16-

aaa it a ai i i

In summary, NOBTS is a school. Students can maintain

actions against schools where discipline is imposed in

contradiction of the school's own rules and without any cause.

Judge Katz's decision and the consent final judgment, therefore,

should be affirmed.

Despite conceding the merits, the School, has belatedly

argued that, while there is judicial review of student

disciplinary decisions (Appellant's Brief at 52), there is stric:

judicial deferenc toward purely academic decisions by tne

institution. Appellant's Brief at 48-51. The Sehoc.

‘t

)

impermissibly claims he was expelled for academic reascons.=

8/ (...continued)

obligations by the student, the institution agrees tc provide the

desired education and its credentials. Fussell v. Lowisiana

Business College of Monroe, Inc., 47& So.2d 652 (ia. Ape. 2a fix

1965); Tedeschi v. Wagner Coliege, 404 N.E. 2€ 1302 (N.¥. 198°

Napolitano v. Trustees of Princeton University, 4353

(N.J. 1982); Lexington Theological Seminary v. Vance, 536 S.w. i:

11 (Ky. App. 1979).

9/ Appellant has incorrectly raised the issues of iudicial

deference to academic decisions, academic freedom, n@ ¢u.e

process in private schools for the first time on appeal. Unifors

rules -- Courts of Appeal, 1-3. On the trial of Appellant's

exception, Appellant did not at any time argue, elicit testimony

Or produce documents to the effect that the court lackec

jurisdiction to involve itself in purely academic decision

making. In fact, to have done so would have been inconsistent

with the Exception and would have really been addressed to th

merits. It is thus inappropriate and untimely for this court to

consider the arguments proffered in Appellant's Brief, pp. 47-52.

Krauss Company v. Develle, 236 La. 1072, 110 So.2d 104 (1959);

Mundy v. Gentilly Oaks, Inc., 227 La. 118, 78 So.2d 530 (1955);

Handy v. Cheatum, 410 So.2d 322 {La. App. 4th Cir. 1982); Wm. B.

Coleman Co., Inc. v. Ackel, 459 So.2d 596 (La. App. Sth Cir

1984). Babcock proceeds, however, in an abundance of caution and

*. )

(continued...

The School's position is grossly i

letter of expulsion=’ and the consent final

the Court does not stop here, Appellant has

notion of academic judgment and freedom

position and the Schoo

remarkably begins by stating that:

ntroversy between

S arguments are meri

consistent with its

judgment. Assuming

had to distort the

to assert such a

tless. The School

the

Babcock related to his

moral standards and his treatment

Ds 3 a 3 ¢ :

of AlS wife in the light of the

- = >? - 5 °

seminary's expectations; in short,

nis ministerial fitness. These are

-~ +} = ~@?> A ad

matters which are academic.

a ws 7 i ae Rr-oF oe . :

Appel.ant’'s Brief p. 46; Emphasis

addcec

ae nia eee 7, ane ~_— = na _ = > _ ** ~ ~ >

Since Appe-.ant nas otherwise arguec that they are theological

-_—— TJ ae b= = oe , 3 + ~

matters Appe.sant S Briel at <2, 28), it is fascinating to see

~ AL -* - a CRRA AR “> a eho | = - r— nr ~ at ~ so"

1D Ww Siid Lae 86«fFBeAOGd cCraws Che Line DetTwee aca aS “

ecciesiastical gquestions At least it woul be interesting if

— . Y -=+ ~ ~t - mor cre ~ Umar = + +r e t€nr 7. ~ re >

characterization of a perscn's Oral fitness" for a given career

~a ew ~ ~ = —— - - Je, = a

as acacemic were not patently absurd

9 ». continued)

. . « . . * a) 4

withou walving the assertion that NOBTS cannot now raise the

issue to obtain reversal.

10/ The nonacademic nature of Babcock's dismissal is further

borne out by the fact that the required "due process" statement

under the provisions of which Babcock was dismissed (R-III, Pp.

93), is entitled “Due Process for Handling Conduct Situations"

(emphasis added) (Exh. D-2 at 26-27). The School characterized

it correctly the first time.

-lk-

Babcock's ismissal was

aim that

ort of i

Supp

= YT? —

Oz University

Regents

tes

NOB

academic reasons,

for

va)

474 U.S.

Ewing,

Michigan v.

decision,"

ademic

—

inely a

it was

because

unenviab

wroicr

ham wee

term Aooes

— am ant ~’we

na severa

course.

YleaAa

+--+

expe

ck was allegedly

Babco

sum,

rei

~~"

om wee

academic

than

rather

nary,

ished

“a

accomp1l

See the Consent

or divorce.

ion

separat

rits,

to the

-]19-

D. The School's Promise Of Fairness In Dealing With Its

Students Was Made Not Only To Babcock, Its Student, But

Also To Other Private And Public Entities For The

Benefit Of Babcock; It Cannot Now Refuse To Abide By

Its Promise.

As set forth above, NOBTS received valuable considera-

tion for its representations and assurances to federal and state

governments as well as S.A.C.S.

La. Civ. Code Arts. 1978-81 give certain rights to the

thiré perty beneficiaries of promises made for their benefit.

Babcock is opviously a beneficiary of the promise of fairness

macde to the £.#.¢.S. ané to the Veterans Administration. See

Lemos Bossier Parish Schocl Boaré, 240 F. Supp. 709 (W.D. La

1965), af£°é 376 F.2é 847, cert denied 366 VU. S. 911, 8/ S. Ct

2116, 18 L. £6.26 1350 (1967

Tnere, black children suec to attenc desegregatec

parish scnoccs in finéing standing to sue, the court held thet

the children were the beneficiaries of the assurances made by the

School Boaré to the federal government that, in exchange for

construction funés, “federal” children would be educateé as other

parish children. As third party beneficiaries under Louisiana

law, the court held that they could sue for enforcement of the

assurances mace for their benefit stating: “having thus obligated

themselves, defendants are now estopped by their contractual

agreement and their acceptance of federal funds paid pursuant

thereto, to deny that plaintiffs are entitled to the same rights

to school attendance as are residential children.” Ic. at 713.

Thus, Babcock, as the beneficiary of the assurance of

fairness exacted by S.A.C.S. and the Veterans Administration, has

the right to sue the School as promisor. Judge Katz's decision

and the consent final judgment should be affirmed. ii/

E. Babcock's Expulsion By The Student Affairs Committee

Does not Involve Excessive Entanglement.

- The Constitutions

pronibit lecislatures from enacting "laws respec<iing ar

establishment of religicrz - U Ss Const Amenc 2 anc 2.4

Const. Art. I §8

11/ In representing itself to the public, including Babcoc

as an accrecited institution : higher Gucation which

subscribes to principles of fairness in its dealings with its

students, the School bound itself. The civil law rincipie,

venire contra factuwn proprium non valet (one cannot go counter tc

one's own acts), recentiy recognized in La. Civ. Code Art. 196°

(detrimental reliance) precludes one from representing oneself in

a certain way and then acting inconsistently with the

representation.

Babcock chose to enroll for his counseling credentials at an

educational institution which was accredited and certified,

knowing that certain standards would have to be met, among them a

standard of fairness in student disciplinary matters.

His enrollment at NOBTS created the contract, (Fussell,

So.2d at 654), demonstrating his reliance. The School must be

held to this contract.

Fe "Establishment Clause” principles

In determining whether a congressional e

nactment

violates the establishment clause, the Supreme Court has examined

three principal criteria: (1) whether the statute has a

secular

legislative purpose, (2) whether the principal or primary effect

of the statute is neither to advance nor to inhibit relig

(3) whether the statute fosters

ion, and

an excessive government

entanglement with religion.” E.E.O.C Vv Mississippi

626 F.2€ 4/7, 48€ Sth Cir. 1980) (citations omitted)

3 Applicable Statutes

Assuming arquendo that Civil Code Artic

Statutes within the meaning of the Constitutional pr

citec above LOulsiané iaw authorizes actions for br

contract

4 Contracts have a secular purpose

NOBTS cites no authority for the proposit

enactment of the provisions relating to contracts has a s

purpose anc no wonder. The Articles are wholly secular

-~P Contractual Articles neither promote nor

religious activity.

The School adduced no evidence and ec

authority for the proposition that enactment of con

c are

4e€s are

Atri ciarec

IV oe Od Wisse

eacr ~é

~r ~ rk =-+

~/ sia.

inhibit

ites no

tractual

Articles inhibits the religious activity and no wonder. There is

none. The Articles are entirely neutral thereby showing the

absence of a constitutional infringement.

6. Contractual Articles do not foster an excessive

government entanglement with religion because

breach of and nonadherence to agreements is not a

tenet of the Baptist faith.

By virtue of its representations, assurances and

agreements, the School offered Babcock and all other tudents

"due process" and informed them that they would be expelled for

separation or divorce. The handbook and bulletin represent a

contract between the School and S.A.C.S. for the benefit of,

inter alia, Babcock At issue, therefore, is whether

interpretation or construction of it is ecclesiastical. Statec

differently, at issue is whether breach of the agreement is 4a

‘a es an c =~ = = “+ i he ano

Courts have not hesitatec to assert uUriseézction Ove

a osm) -_ ~ - ~~ = era -

churches where the issues involved were nonecclesiastica.. EEOC

P F , ; a . * devi * a i _

v Mississipri College, 626 F.2d 477 (Sth Cir 19 se

Pr 2

Giscrimination is not a tenet of the Baptist faith, anc so the

EEOC might investigate discrimination charges at tnis

12/ Appellant admits that the relations! p may be contractual;

but claims that enforcement of it requires dismissal of Babcock's

Petition because NOBTS reserved the right "to make spiritual

judgments concerning his fitness..." and that he was implicitly

expelled because of such. (Appellant's Brief at pp. 37-38).

NOBTS is trying to alter the facts of this case. Babcock wasn't

expelled pursuant to the provisions cited by NOBTS on p. 38 of

its brief. Babcock was expelled because he was allegedly

separated or divorced. Regardless, even if NOBTS is correct, a

determination of unfitness for nonacademic reasons is still a

civil controversy and a subject of jurisdiction.

—

— -

Baptist-owned college); Brown v. Dade Christian Schools, Inc.,

556 F.2d 310 (5th Cir. 1977), cert. denied 434 U.S. 1063, 98

S.Ct. 1235, 55 L.Ed.2d 763 (1978) (right to practice racial

Giscrimination not a religious but a social or political belief

so as to subject defendant to suit for breach of right to

contract under 42 U.S.C. § 1981); Fiedler v. Marumsco Christian

School, 631 F.2d 1144 (4th Cir. 1980) (since prohibition of

interracial dating by Baptist owned school was not a tenet of the

Baptist Church, "no valid religious belief has been called into

question" and plaintiff can maintain suit under 42 U.S.C. § 19&:

for breach of contract); Ninth & O Street Baptist Church v. EEOC,

6:€ F.Supp. 1231 (W.D. Ky. 1985) (EEOC allowed to investigate sex

Giscrimination charge); Lexington Theological Seminary vs. Vance,

596 S.W. 246 1: (Ky. App. 1979) (First Amendment Challenge to suit

because there was no religious issue involved; rather it was a

13/ These cases are fully consistent with the "neutral

principles" of law analysis set forth in Jones v. Wolf, 443 U. S.

595 (1979). In Jones, the Court recommended (but did not limit)

the doctrine's use in church property disputes, allowing the

language of deeds, church charters and provisions of the

constitution of the general church to be examined and interpreted

by the courts, entailing "no inquiry into religious doctrine,"

and relying "exclusively on objective, well established concepts

of trust and property law familiar to lawyers and judges." Id.

at 603. Its application was applied and extended by the

Louisiana Supreme Court to all nonecclesiastical disputes Fluker

Community Church v. Hitchens, 419 So.2d 445, 447 (La. 1982),

LeBlanc v. Davis, 432 So.2d 239, 242 (La. 1983). See also Smith

(continued...)

ade

Renn SS

Babcock does not assert, and knows of no evidence

whatsoever, that breach of contract is a tenet of the Baptist

faith. NOBTS has adduced no evidence that it is.

In fact, Appellant does not believe that divorce and

separation are morally wrong or contrary to religious doctrine,

as the School admits divorced and maritally separated persons as

students. Its divorce policy as to admissions only forbics

entry to such person within one year of the divorce or

settlement (Exh. D-1, Bulletin at 65) More importantly the

Bulletin, Id., explains that religious dogma, morality ane

Sanctity have nothing to de with the prohibition Rather, the

underlying reason is so that the "resultant problems wili not

become a disturbance to relations with students here

ears * = ee . mse ~o om a7 =

The reaso is thus ot religious, but academic, social and/or

~~ la -=~+ ” ie ~- -

emotional so that students will not be disturbec in their

rf o 7 ~ . Jar =A _ - —

studies Judge Katz, accordingly, had the power to determine

13/ (...continued)

v. Riley, 424 So.2d 1166, 1171 (La. App. 1st Cir. 1982)

(jurisdiction existed to interpret church's articles of

incorporation and to hold that its pastor had illegally excluded

women from the church's Board of Trustees).

Although appellant has declared the doctrine dead as a

result of limitations placed on it by such as the Hull and

Crowder decisions, (Appellant's Brief at 23), the concept that

the language of a document written in a tongue readily readable

by a lay person should be open to examination and interpretation

by a judge as to its meaning in lay terms has not died, as the

above cited Louisiana cases demonstrate.

whether the tudent Affairs Committee impermissibly expelled

Babcock on the basis of a purported separation or divorce.

Moreover, one need not consult the scripture or engage

in religious mysticism to determine whether Babcock was expelled

because he was separated or divorced. In fact, one only needs to

examine La. Code Civ. Arts. 138-160 and La. R.S. 9:301 et seg. tc

see what separation and divorce mean.

The School, nevertheless, claims the Petition is beyond

741 5 a5 5 _— + ; » a +1 + , 5 _

the jurisdiction of the court. In support of i1ts contention,

+ 5 ~ * = Re =

the brief is redolent with pithy quotations Yet, NOBTS cites

not @ Single case dealing with contracts, divorce, separatior,

or even with the relationship between a seminary and its students

3 i Oe t.39+ &) — ~ = ays = = RS } { 4 ~

Gealing with the defrocking of a bishop (Serbian Eastern Orthodox

(Gonzalez v. Roman Catholic Archbishop, 280

which of two bishops of the Russian Orthodox

. s

We)

Ve)

b 3

(

Church is to be seated (Kedroff v. St. Nicholas Cathedral, 44 U.

S. 94 (1952)); whether a local or a general church controls

church property (Presbyterian Church in United States v. Mary

Elizabeth Blue Hull Memorial Presbyterian Church, 393 U. S. 440

(1969)); and a claim for unemployment compensation (Thomas v.

Review Board, 450 U. S. 707 (1981)).

The only decision cited by Appellant worthy of any

further mention in connection with the establishment clause is

-26~

E.E.O.C. v. Southwestern Baptist Theological Seminary, 651 F.2d

277 (3th Cir. 1961). There, the court dealt with defendant's

challenge to an administrative subpoena for provision of

employment related data. ts holding was bifurcated. First, the

court rendered a statutory determination and held that Title VII

of the Civil Rights Act of 1964 did not apply to the employer-

employee relationship between a church and its ministers, which

14/

therein meant defendant and its faculty.

held that Congress intended for the E.E.0.C. to be able tc

7 , 5 , . 7 , , 5 ‘

regulate the relationship between employer (church) anc employees

~ +) 5 ™) .) ) 5 5 5 | 7m) . _

the Constitution. The court held no Constitutional violation,

39 > 79 “| Pe ; ’ P+ ~~ rf : 5

even though four full time Support staff were ordainec ministers

and even if one characterized the student as ministers in

training (651 F.2d at 284-86) because the relief sought by the

14/ See 651 F.2d at pp. 282-85. Note: Title VII clearly

exempts from its coverage religious associations and educational

institutions "with respect to the employment of individuals of a

particular religion to perform work connected with carrying

on...its activities." 42 U.S.C. § 2000E-1.

-ii-

E.E.O.C. was "not an ongoing interference with the [Seminary's]

religious practices..." 651 F.2d at 286.

Likewise, Babcock, a student, does not excessively

entangle "church and state" by seeking to enforce a contract

because it does not at all interfere with the NOBTS' religious

15/

practices.—

7% Babcock's expulsion did not involve a matter of

internal church discipline/a religious question.

Putting aside the fact that a school iS not a church,

Dr. Stewart admitted that the wording in the student handbook

section "Due Process for Hanéeling Conduct Situations," (Exhibit

D-2 at 2€-27), was applicable to Babcock, and was NOSTS'

response to B.A.6.5.°6 requirement to promulgate sucn é

statement (ReIII, pp. 92-93)

Thus, the source of the procedure outlined was not internal

s? Wi: > molaaRe 2am 5 - ; 9 ~~

to any church including NOBTS, assuming it iS one, but was

aos Considering the nature and extent of the data already

being submittec willingly to both state and federal governments

and the required availability of enrollment and other data for

Veterans Administration and Guaranteed Student Loan purposes, a

court's “interference" as represented by Babcock's claim with

the School's business would be minimal by comparison. Stated

differently, with such "interference" by secular agencies already

so evident in the affairs of the School, how can NOBTS be heard

now to proclaim that one more secular entity, the civil court,

has no right to investigate its contractual obligations to its

students? The whole issue of EEOC v. Southwestern Baptist

Theological Seminary was whether a secular agency, the E.E.O.C.

had the right to request the very same information which New

Orleans Baptist Theological Seminary has regularly offered to

governmental entities!

-28-

required to exist by purely secular agencies, from which the

School derives the benefits that flow from accreditation and

certification. Moreover, Babcock has not been expelled from any

church and Appellant's discussion of minister expulsion cases has

no applicability to the facts herein. Babcock's expulsion by

the Student Affairs Committee, accordingly, had nothing to do

with internal church discipline and is reviewable by courts as no

religious question was involved.

F. Review of Babcock's Expulsion By The Student Affairs

Committee Does Not Infringe Upon The Free Exercise Of

Religion.

1. The Constitutions

Both the Federal anc the LouiSiana Constitutions

prohibit legislatures from enacting laws "prohibiting the free

exercise" of religion U. S. Const. Amend I and La. Const. Art.

1§ 8

ry - "Free exercise" clause principles

"In determining whether a Statutory enactment violézes

the free exercise of a sincerely held religious belief, the

Supreme Court has examined (1) the magnitude of the statute's

impact upon the exercise of the religious belief, (2) the

existence of a compelling state interest justifying the burden

imposed upon the exercise of religious belief, and (3) the extent

to which recognition of an exemption from the statute would

impede the objectives sought to be advanced by the state.

-29-

estates Vv. Mississippi College, Supra at 488 (citations

omitted).

Za Applicable statutes and principles

At issue here is whether Louisiana Code Articles on

contracts impinge upon the free exercise of religion. Ab initio,

one must determine whether there is a sincerely held religious

belief at issue Fiedler v. Marumsco Christian School, 631 F.2d

1144, 1151 (4th Cir. 1980) (race discrimination - expulsion of

white stucent for dating back student-found not to be a

religious, but rather a social or political, belief anc,

therefore, plaintiff coule maintain suit under 42 U.S.C. § 198i

See also Brown v. Dade Christian Schools, Inc., 556 F.2d 310 (5th

Cir. 1977) (belief in propriety of racial segregation was social

and political rather than religious).

4. Contractual Articles do not infringe upon the free

exercise of religion as nonadherence to contracts is

not a religious belief of the Baptist faith.

NOBTS adduced no evidence and cites no authority for

the proposition that nonadherence to contractsS was or is a tenet

of the Baptist religion. Since there is no involvement of a

sincerely held religious belief, there is no "free exercise"

problem.

Appellant, nevertheless, asks this court to reverse in

reliance on Crowder v. Southern Baptist Convention, 828 F.2d 718

-30-

(llth Cir. 1987). There, however, the issue was to determine

which faction within the Southern Baptist Convention, the

fundamentalist or the moderate group, should be seated as

representatives to an ecclesiastical event which would determine

major questions of faith for 37,000 churches. The court in

Crowder considered the jurisprudence concerning hierarchical

churches and concluded that the Southern Baptist Convention w

also held that since messengers there hac

among them. Th

adéressed the highest tribunal of the Southern Baptist Church,

interference was not appropriate.

In the present case, Babcock is a student who has

expellec in utter disregard for the facts anc promulgatec

procedures The School, nevertheless, compares Babcock to the

church messengers in Crowcer, claiming that like the messengers

Babcock had sought redress first within the School's structure,

was heard by the "highest tribunai™ within the hierarch:cai

church, ana when he failed, looked to the civil courts

(Appellant's Brief at 30). Tne parallel must fall, first because

of the incorrectness of appellant's facts: Babcock did not seek

recress internally; he was abruptly expelled rithout an

opportunity to plead his case and addressed the court immediately

thereafter. The parallel also must fall for the reason that the

decision to expel Babcock was made by the NOBTS Student Affairs

» aS it claims, an arm of this same Southern

Baptist Church, how can Babcock have been heard and condemned to

expulsion by its highest tri Is there more than one that

is "highest"? Or is the court to believe that the NOBTS Student

’

Affairs Committee is the Southern Baptist Church's highest

on ote aAa~*> ~~ * an ~ — an 7>* ee | —— fo} -

Vs YPwuta Sai ~ + > coes not ae y wa’ Ls ager; ine . <

eA nmaAanae nf stew Vatetas Aami aoian

~~ 7 _— _ hl

Sound: SS Of JUaGE @4te & GeCcisici

RAMAT TIC TAD

VW wal er

> o . rhara-teri gatiane ane aAws ,eraet ar NOS

je Sia l a. tSz dG ana hoe Ont uUusScart.ol ° @). ve

mh ao moo me — nom % - ae AawrAtanhe mnaetr af ¢ ao ¢ .

¢ sc a ¢ e

SiIaZTaTLLeILc€esS 2tse@€dsa OS @A2 CAUICA Ana Gevorces OUSt Of AtS OFsaesi tC

. } . z » £

we em me = é — » WA) ¢ > b Ps yrce manAamas= + » ease nmaeae

SAL Oe ta “ aw ¥ eEeee —— aVvuu « Cc 42640 & AS wae tS . a & Ws .~.aots

Tr a SP nam €riem Manmerireae of i aame? 4 mad

¢ 3 ¢

WALC SempseyYy CONLUSEe HDecausSe Cl. Anhapps.liCadSiiity.

t 2 :

WHR *e sec —~- Asi Rae ~~ ae - ae ee ae ro * ALIr _ nn

NUS.c ag a ecucationeadi L4NnSTitltuctr1og Wool.) Ownhnecac anc

Ane+rat 3 = he CAi\e horn Rarticr Convent AT Tee A AaAwPekhs we anr

Operetec dj che oSoutneyr pbaprist to LiOn 4tTS OwnerSsni anc

a... nA _ he i ~ nn + a tery ho . ~ + -hK=+ - — a -,

Controa Owever;x, coes © at@7 Lne Fact Chat a1t iaS 4 cc2€

’

16 Crowder is analogous to a Church administration or

governance case. Courts have refused to interfere in

administration and governance cases. E. g., McClure v. Salvation

Army, 460 F.2d 553 (5th Cir. 1972). McClure described selection

of a minister and determination of salaries, assignments, etc.,

as matters of administration and governance. Babcock's case, of

course, involves none of this.

Ciplinary\

—

Vv)

because brea

Amendme

ratec

sepa

Babcock was

‘f)

()

i 8]

e€

wauKkKe

i> +

M 5

“Dr

i -

ewspa

—_

(d) Rudolph G. Babcock received a letter from Becky

Brown dated April a 1989 offering her

congratulations (see Addendum)

(e) Rudolph G. Babcock received a "Dear Graduate”

letter dated April 21, 1989 (see Addendum)

(f) Rudolph G. Babcock received invitations to

graduation exercises, breakfasts and dinner under

letter dated April 26, 1989 (see Addendum)

. a | * Ta a ~ Cc

S kudolph G Babcock received a note of

i <5 = -~ ~ +

congratulations on his graduation from the Foreisr

> ~o - Das _ = sacc <

Missior Boarc on May , 2989 (see Acacencum)

_ i - i 4 -* = 7 ° Dak

yestercay, tne cay bpetore the Briet was cue, Babcoc)

: ; rar im ; :

a A . =11 dal -

WeS intcrmec that he woulc not ob allowec to graduate. see

3 See A = ~ > oo ' * . a a — ~

Accensum. Accorc:ns to Appeilant's counsel, someone decidec tc

= - < te 79 ; ~~ - = ™ ~- + - - -

Cssaliow tne graauation because, but for this action, Babcock

‘ : ‘ — gome Soar)

woulc have been expeliec in August 1988 ané not on the sgraduatior

5 >

128%

Tr. > = 7 oa : 4 4 nr } e

Ruccupn Babcock personally wonders whether NOBTS has

rinciple of “love thy neighbor as thyself?" The

undersigned wonder whether NOBTS acted in order to maintain a

live controversy (avoid mootness).

Regarcless, affirmance is appropriate.

-34-

Cleis 3. tar

ELLIS B. MUROV (9839)

JOANNE C. FERRIOT (18209)

DEUTSCH, KERRIGAN & STILES

755 Magazine Street

New Orleans, Louisiana 70130

Telephone No. (504) 581-5141

Counsel for Rudolph G. Babcock

CERTIFICATE OF SERVICE

that a copy of the Appellee's Brief

ichard T. Simmons

05 Baronne Street

Suite 307

New Orleans, LA 7/0112

James P. Guenther

~a Kr

2199 West End Avenue

6860 Vanderbilt Plaza

a“

jashville, TN 37203

CLF Fraser

fa]

LLIS B. MUROV

Cite an, Ky App. 096 5. W230 11

regulations used in a vacuum,

should be interpreted in conte.

intended import.

LEXINGTON THEOLOGICA. SEMI-

NARY, INC. Appellant,

Ottie David VANCE, Appellee.

Ottie David VANCE, Cross-Appellant,

LEXINGTON THEOLOGICAL SEMI-

NARY, INC. Cross-Appeliee.

Court of Appeals of Kentucky

May 18, 1979

Appea’ was taken from s judgment of

the Fayette Circuit Court, Charles M. Tack-

ett, J., ordering seminary to grant a master

of divinity graduate degree to an admitted

homosexual The Court of Appeals, How-

ard, J., held that words and phrases used in

seminary 's catalog. such as “Chnmstian min-

istry.” gospe! transmitted through the “B)-

ble.” “servants of the gospe),” “firm!y com-

mitted to the role and mission with which.

they wil) begin their ministry.” “fundamen-

ta] character’ anc “display traits of charac-

ter and personality which indicate probabie

effectiveness in tne Chmstiar

were not vague or indefinite

Pie thi ded

exercise their sounc discretion in the matter

of granting & master of divinity graduate

degree to an admitted homosexua:

Reversed

Howerton. J., dissented and filed opin-

1. Colleges and Universities 9

Terms and conditions for graduation

from private college or university are those

offered by publications of college at time of

enrollment and, as such, have some charac-

teristics of contract

2. Colleges and Universities e9

College regulations defining student

conduct, challenged on ground of vague-

ness, are not judged by degree of specificity

required for pena! statutes, nor are such

rather

of their

3. Colleges and Universities e=9

Words and phrases used in seminary’s

catalog, such as “Christian ministry,” gospe!

transmitted through the “Bible,” “servants

of the gospel,” “firmly committed to the

role and miasion with which they will begin

their ministry,” “fundamental character”

and “display traits of character and person-

ality which indicate probable effectiveness

in the Christian ministry,” were not vague

or indefinite; thus, board of trustees of

seminary had every right to exercise their

sound discretion in the matter of granting a

master of divinity graduate degree to an

admitted homosexus!

4. Colleges and Universities 9

Courts will not generally interfere in

operations of colleges and universities, espe-

cially in actions challenging institution's ac-

ademic regulations, since courts possess

minimum expertise in the ares

Herbert Sledd, William H McCann

Brown, Sledd. McCann, PSC, Lexington, for

appellant/cross-appeliee

Richard N. Rose, Lexington, for appel-

lee/cross-appellant

Before COOPER. HOWARD and HOW-

ERTON, JJ

HOWARD, Judge

This is an appea! from sa judgment en-

tered in the Fayette Circuit Court ordering

the Lexington Theological Seminary, Inc

(the defendant below) to grant a Master of

Divinity graduate degree to Ottie David

Vance (the plaintiff below), an admitted

homosexual!

The tra] court decided this case on a

contractual! basis Briefly summarized, the

tria] court determined that the catalog is-

sued by the Lexington Theologica) Semi-

nary, Inc. (hereinafter referred to as the

Seminary) fulfilled the requirements of a

contract between the Seminary and Ottie

David Vance (hereinafter referred to as

Vance). The trial court further determined

that Vance had fulfilled al] the scademic

and financia) requirements needed as pre-

requisites for the granting of a degree

The court held that the catalog did not set

forth reasonably clear standards concerning

character traits and that none of the con-

tract terms made clear that the Seminary

could refuse to grant a degree to Vance

because he was a homosexual

Vance enrolled in the Seminary in Sep-

tember of 1972. In Septernber, 1974, Vance

applied to the faculty for admission to the

degree candidacy program. The application

was deferred unti] Vance fulfilled certain

requirements relating to field expemence

Unbeknownst to the faculty or adminis-

trative staff of the Seminary. Vance was a

homosexua] and had actively engaged in

this life style for a number of years” In

September, 1975. Vance advised Dean Ro}

Graham of the fact that he was a homosex-

val, that he lived a homosexua! life style

and had beer “marned” to another man for

six years, and that he now desired tw come

out of the close. Dean Graham advised

Vance to meet with Dr Wayne H Bel).

president of the Seminar. Vance me:

with Dr. Bel! and told him of his homosexu-

a! life style

Dr. Bel] emphasized to Vance tha: his life

style and practice of homosexuality could

impair the granting of a degree by the

Seminary Vance was advised that even if

he met the academic requirements and was

admitted to the degree candidacy program.

neither of these factors guaranteed that he

would be granted adegree Vance testified

that he was aware that the faculty and

Board of Trustees must approve the grant-

ing of a degree and that he knew there was

some question as to whether the facult)

and/or the Board of Trustees would ap

prove

In January, 1976, Vance was informed

that his application for degree candidacy

was again being deferred unti] he could

complete one particular course during the

spring semester. Vance took the course

and successfully completed it. In May,

596 SOUTH WESTERN R” “RTER, 24 SERIES

1976, the faculty recommended that Vance

receive his Master of Divinity degree The

Executive Committee voted not to approve

the faculty recommendation and the full!

Board of Trustees subsequently ratified the

Executive Committee's decision not to

grant Vance a degree Vance thereafter

instituted suit, seeking to have his degree

conferred

Vance also sought compensatory damages

for lost wages and the award of attorne; s

fees The trial court held that Vance failed

to prove any damages he sustained and did

not award attorney's fees These two is-

sues are the subject of Vance’s cross-appes!

The Seminary argues three issues on ap

peal 1) That the order compelling the cor-

ferring of the degree was a violation of the

First Amendment mght to freedom of reii-

gion. 2): that Vance failed to prove any

contract between the parties and fasied tu

prove s breach of contract by the Seminar

or the fulfillment of obligations by Vance

and 3) that any alieged contract was ren-

dered void because of Vance’ss faiiure to

revea) that he was a homosexua’ at the

time of admission to the Seminar,

This Court wil! not discuss the Firs:

Amendment argument since this Court be-

leves. as dic the tma) court, that this is a

contrac: case This Cour differs with the

tra! court in that this Court believes that

reasonably clear standards concerning char-

acter were set forth in the catalog

{1] The terms and conditions for gradu-

ation from a private college or univers:ts

are those offered by the publications of the

college at the time of enrollmer: and. as

such. hase some of the charactemstics of a

contract University of Miam: + Militana

Fia App. 184 So.2d 701, 704 (1966

[2] College regulations defining student

conduct, challenged on the ground of

vagueness, are not judged by the degree of

specificity required for pena! statutes Ne-

ther are these regulations used in s vacu-

um, but rather they should be interpreted

in the context of their intended import

Depperman v. University of Kentucky, 371

F.Supp. 78, 78 (E.D.Ky.1974)

In Depper-

‘oe as, Ky App. 086 S$. W236 11

man, the court held that the fol,

lation was not vague:

Any student may be denied permission to

continue enrollment in the College of

Medicine if, in the opinion of the Faculty

Council. his knowledge, character or men-

tal or physica! fitness cast grave doubts

upon his potential capabilities as a physi-

cian

ag regu-

In the instant case, the portions of the

catalog for the school year 1972-1973,

which are relevant to this case, read as

follows:

1) The introductory page, entitled “Edu-

cation For Ministry”, contains the following

two paragraphs

Lexington Theologica] Seminary is en-

gaged at the graduate level in profession-

al education for the Christian ministry

Finding its charter in the gospe! trans-

mitted through the Bible and borne

through history by the ongoing life of the

church. it seeks to equip ils graduates to

serve as contemporary servants of that

gospe:

By the time of graduation. students are

expectec. having worked througn prot-

lems of vocationa) indecision. to be firm's

committed to the role and mission with

which thes wil! begin their minisin

2) The Master of Divinity Program. 1s

describec ir. the following paragrapt

The Master of Divinits program is a@

three-year course of study and is de-

signec for those who desire to become

pastors of loca! congregations. leaders of

religious education, religious leaders at

the state and nations! leve!. ministers of

music. campus ministers, chaplains in hos-

pitals anc in the armed forces, missionar-

es, and leaders ir other specialized minis-

tenes

3) The explanatory section for the appli-

cation for degree candidacy contains the

following paragraph

At the time of his application for cand)-

dacy, the student's overall seminary pro-

file, including academic performance,

field education leadership, financia! re-

sponsibility, and fundamental! jracter,

is evaluated by the faculty. N. student

on probation may [be] admitted to candi-

dacy

4) The admissions standards and policies

section contain the following paragraph:

Lexington Theologica] Seminary will con-

sider for admission applicants who hold

the B.A. degree or its equivalent. Pref-

erence will be given to graduates of ac-

credited institutions who have concen-

~ trated in the liberal arts, maintained a

minimum of B average in their pre-semi-

nary studies, and display traits of charac-

ter and personality which indicate proba-

ble effectiveness in the Christian minis-

try

The trial] court believed that the Semi-

nary should have defined what it meant and

expected by the use of such words and

phrases as “Christian ministry”, “gospel

transmitted through the Bible”, “servants

of the gospel”, “firmly committed to the

role and mission with which they will begin

their ministry”, “fundamenta! character”

and “display traits of character and person-

ality which indicate probable effectiveness

in the Christian ministry.” The tnmal court

stated that, although the use of these words

and phrases might be clear to the Board of

Trustees, the meanings of these words and

phrases were not clear to it [the tna! court)

We disagree Those words “can be easily

understood by anyone who possesses the

intelligence to gain admission to an ac-

credited institution of higher learning.”

Papish +. Board of Curstors of University

of Missouri, 464 F.2d 136, 143 (8th Cir. 1972)

reversed on other grounds, 410 U.S. 667, 93

S.Ct. 1197, 35 L.Ed.2d 618 (1973).

[3] Besides having meaning to anyone

with enough intelligence to be admitted to

a college, we believe that these words

should have even greater meaning to a stu-

dent who is actively seeking a degree in a

religious field of study. We do not believe

that the words and phrases used in the

catalog were vague or indefinite.

In Carr v. St John's University, New

York, 34 Mise.2d 319, 231 N.Y.S2d 403,

-ersed 17 App.Div.2d 682, 231 N.Y.S.2d

410, affirmed 12 N.Y.2d 802, 285 N.Y.S.2d

834, 187 N.E.2d 18 (1962), a Catholic univer-

sity regulation stated that, in conformity

with the ideals of Christian education and

conduct, the university reserved the right to

dismias a student on whatever grounds the

university deemed advisable. A divided

court held that the dismissa) of four stu-

dents, two of whom were married in a civil

ceremony and two of whom acted as wit-

nesses, was within the discretion of the

university and that the court could not re

view the exercise of that discretion.

The Seminary asserts that the order com-

pelling the conferring of the graduate de-

gree to Vance was a violation of the First

Amendment. Again, we do not fee! bound

to decide this case on First Amendment

grounds, but rather on the basis of whether

the Seminary breached its contract to

Vance by refusing to grant him his degree

[4) The courts will not generally inter-

fere in the operations of colleges and uni-

versities, especially in actions challenging

the institution's academic regulations, since

the courts possess minimum expertise in

this area. Depperman v. University of

Kentucky, supra, at pg 76

In 15A AmJur.2d Colleges and Universi-

ties § 31, at pgs 202-293, appear the follow-

ing statements concerning the confermng of

degrees by # university

Universities and colleges are usually vest-

ed with the power to graduate and to

confer degrees and diplomas on students

who have complied with the requirements

imposed by the regulations of such inati-

tutions. Where a student matriculates at

a college or university, a contractual rela-

tionship is established under which, upon

compliance with al) the requirements for

graduation, he is entitled to a degree or

diploma. However, the faculty or other

governing board of a college or universi-

ty, which is authorized to examine the

students and to determine whether the)

have performed al] the conditions pre-

scribed to entitle them to a degree or

diploma, exercises quasi-judicial func-

tions, in which capacity its decisions are

doclusive, except that # degree or diplo

ma may not be refused arbitrarily. (em-

phasis ours).

It is true that the Seminary is essentially

& private graduate school However, its

main emphasis is on the training and educa-

tion of people who desire to become in-

volved in the Christian ministry. In this

connection, Vance fully intends to become a

minister and was not seeking this degree

for any other purpose.

The tria) court specifically held that it

was not deciding the morality of homosexu-

ality in this particular case, even though it

can be a criminal! offense under Kentucky

law, KRS 510.100. Although this case can

be decided under contract law, the question

of morality of homoserua) Christian minis-

ters must be of overmding importance to an

institution such os we have here tha‘ is

engaged in the business or calling of train-

ing persons for the Chmstian mimstry It

begs the question for Vance to argue that

the secular world is becoming more tolerant

of homosexuality as a viable life style This

conclusion on his part w speculative. but

even if it is true, this argumen: ss not

relevant to the ussues in the case

Aithough we are living in 8 society tha: is

more permissive in Many respects than the

societies in the recent past, the argumenr:

that Chnmstian denominations or other re.-

gious groups should adopt the life style and

morals of some segments of the population

at any given time is mdculous on its face

This type of argument can be made for

gaining approva! for many differen: acti»-

tes which are completely contrary tw the

teachings of the Chnstuan relignor.

The Lexington Theologica! Seminary is

an old and iliustmous Seminary that has

prepared ministers to preach the Christian

gospel! in the Disciples of Christ Church and

other denominations. Therefore, it has the

most compelling interest in seeing that its

graduates who go forth with a Dwinity

degree, bearing the name and approva! of

the Lexington Theologica) Seminary, sha)!

be persons possessing character of the high-

est Christian ideals. Therefore, the Board

of Trustees of the Lexington wlogical

Seminary had every right, and. as their

strict duty, to exercise sound discretion in

the matter of granting a degree to Ottie

David Vance.

In view of the circumstances shown in

this case, we do not find that the Board

exercised its discretion in an arbitrary man-

ner or that same was abused. The trial]

court's decision in ordering the Seminary to

grant Vance a Divinity degree was clearly

erroneous. Furthermore, there was no es-

toppel shown precluding the denia! of the

degree by the Seminary. Vance proceeded

to finish his studies at his own risk, after he

revealed his homosexua) life style He was

warned by the Seminary that this revela-

tion might preclude the degree being grant-

The judgment of the tria! court is re-

versed on the appea! and is affirmed on the

cross-appea]. The tra! cour: sha!) dismiss

the complaint

COOPER, J.. concurs

HOWERTON. J. dissents

HOWERTON, Judge, dissenting

] cannot agree with the opinion of my

colleagues, although ] am sympathetic with

the desire of the trustees to withhold the

seminary’s degree from an avowed homc-

sexus) For me. the problem of the semi-

nary falls primar], on the actions. or inac-

tions. of the dean. the president. and the

faculty. If those seminary leaders cannot

stand up for what is supposed to be right

then why should we expect the student,

Vance, to interpret the meaning of the lan-

guage in the catalog to exclude him from

eligibility for a degree. Since neither the

dean, the president. nor the faculty under-

stood the catalog tw clearly exclude homo

sexuals, their view certainly clouds any con-

trary meaning

The trial court found the language in the

catalog to be too ambiguous to exclude a

homosexua] such as Vance. Under the cir-

cumstances in this case, 1 agree. Except

for the indecisiveness of the dean and the

president, however, | would have agreed

with the majority opinion and --ncluded

that anyone intending to become Linister

in any Christian denomination should un-

derstand, or at least soon know, the atti-

tudes toward homosexuality as are ex-

pressed in both the Old and New Testa-

ments of the Bible.

Once the dean and the president were

aware of Vance's intention to continue liv-

ing as a homosexual, they could have rea-

sonably expelled him. Such a decision

would obviously have been upheld by al!

members of this panel, if Vance had both-

ered to challenge such a dismissal.

Vance voluntarily gave the dean and

president this information in September, a

whole schoo) vear before his time for gradu-

ation. At the beginning of his final semes-

ter, the seminary accepted more tuition,

and Vance was advised what he must do to

complete the requirements for the degree.

Vance did all of these things and was then

recommended for a Masters Degree by the

faculty. Therefore, in addition to agreeing

with the trial] judge's finding that the cata-

log did not exclude homosexuals, ] must

also conclude that the seminary should be

estoppec from denying Vance his degree

The fact that Vance was giver some weak

warning would not overcome this

] can certainly understand why the Board

of Trustees would not wish to grant Vance

a degree from the Lexington Theologica)

Seminary, Inc., but granting the degree

does not ordain Vance to become a minister

in any church. Furthermore. degrees have

been granted by this seminary to others

who did not intend to become Christian

ministers’ For that matter, degrees have

been granted to non-christians, who merely

desired to become educated in the teachings

of the seminary. In the future, the Board

should consider revising the catalog to be

more explicit on what is meant by “funda-

mental character.” The Board might also

make it clear that applications for degree

candidacy wil] not only be “evaluated by

the faculty” but will also be reviewed by

the Board.

16 Ky. 696 SOUTH WESTERN

The seminary raised a question regard

religious freedom and the separation of

church and state. Under the peculiar cir-

cumstances in this case, and considering the

nature of this particular seminary, ! do not

find that the tria! court's judgment violates

the constitrtiona] requirements of religious

freedom and the separation of church and

state. The seminary also argued that

Vance’s origina] enrollment was based on

fraud or mistake which would render any

contract void. This point would be valid

only if the catalog “contract” could be in-

terpreted to exclude homosexuals. Since |

have concluded that the language has been

rendered meaningless, Vance’s failure to

disclose his life style and feelings on this

mora) issue could not constitute fraud on

his part This argument might have

carmed considerable weight, and the

changed circumstances would probably have

brought a different result, if Vance had not

disclosed his homosexuality unti] he had

completed al] academic requirements for his

degree

Finally, I agree with the tna! judge ir

that Vance proved no damages. Therefore

] would affirm the judgment of the tna!

court on the appea! and the cross-appea

AD awn SS"

Joe CLARK, Appellant,

Ernest MASON, the Board of Elections of

Rockcastle Co. Clyde Barnett, Victor

Hysinger, Manuel Shepherd, and Money

Ed Cummins, Appellees.

Court of Appeals of Kentucky

May 25, 1979

In an election contest action involving

the office of magistrate, the Rockcastle Crr-

cuit Court, Phillip K. Wicker, J., entered

REPORTER, 24 SERIES

judgment, from which respondent appealed.

The Court of Appeals, Martin, C. J., held

that fact that assignment of the action for

trial on December 28 took place less than 30

days after service of summons, which oc-

curred shortly after November 17, did not

render it unnecessary for tria] court to

make a finding as to just cause for exten-

sion of time beyond the statutory 30-day

hmitation period.

Judgment reversed

Elections = 300

Fact that assignment of election con-

test action for trial on December 28 took

place on December 15, and, thus, the assign-

ment had occurred within 30 days after

service of summons, which took piace short-

ly after November 17, did not render it

unnecessary for trial court to make a find.

ing as to just cause for extension of time

beyond the statutory 30-day lim:tauon pen

od KRS 120.155

Car! R Clontz, Clontz & Cox. Mount Ver

non, for appellant

Charies R. Coy, Coy & Coy Richmond, fo:

appeliee Ernest Masor

Before MARTIN. Chief Judge. am

HOWERTON and LESTER. JJ

MARTIN, Che! Judge

This w an appeal based in part on .

procedura! error by the tma! court ip 8

election contest action involving the offic

of Magistrate in the Fifth Magistena] Dis

unct of Rockcastie Count) We think th

procedural wsue raised 5) appellant wil] b

dispositive of this appea.

Mr Mason filed hus petiuon on Novembe

17, 1977, requesting & recount and contes:

ing the election pursuant to KRS 120.15

This statute sets out the procedure to fo

low ip a contest of a regular election an

provides that evidence in chief for the cor

testant must be completed within thirt

days after service of summons. Althoug

we have not been informed by either part

sasesnssinrteeneenisheeseseninesneesimasiamieemneeeeeee-——_____

1302 *¥

jury's deliberations. It bore materially on

whether the jury believed defendant's claim

of an early turn into the deceleration lane

lt also lent some credence to defendant's

darting back and forth contention, which

was much more possible to have occurred

over a 75-foot or a 45-foot distance than at

a 2foot distance Mrs. Harris, the driver

of the car behind the Nitschke camper as it

entered the exit lane, placed its entry quile

close to the exit lane, and testified as to

decedent's movements (not all of which

could she see) that he hesitated and then

rar quite fast when he disappeared from

her view ir fron: of the camper Her testi-

mon\ on those points would tend to negate

defendant's contention that decedent darted

back and forth Moreover. both her marh-

ings on a photograph and defendant's wife's

ima’ vestimon\ placed decedent off the exit

ane @ on its left-hand shoulder at the

time he was struck Ir hght of the forego-

£ IS IMposs.die to conclude thar the

mr. . verdict may not have been different

har st was had the Tria! Judge not errone-

ous exciudec the questions anc answers

Ir view of ms conclusion concerning the

deposition point. ] deem it unnecessarm tc

discuss the expert Lestimons rulings

For the foregoing reasons. ] vote to re-

verse the order of the Appellate Division

JASEN. GABRIELLI] and JONES. JJ

concur with COOKE, C. J

MEYER, J., dissents and votes to reverse

in a separate opinion in which WACHTLER

and FUCHSBERG. JJ., concur

Order affirmed, with costs

404 NORTH EASTERN REPORTER, 2d SERIES

49 N Y.2d 652

Nancy J. TEDESCHI. Appellant.

¥v.

WAGNER COLLEGE, Respondent.

Court of Appeals of New York

April 1, 1980

Parttime student who had been sys.

pended from private college sued for dam.

ages and order compelling the college to

reinstate her The Supreme Court, Rich.

mond County, Arthur S. Hirsch, J. 93

Misc.2d 510, 402 N Y.S.2d 967, entered judg.

ment for the college and the student ap.

pealed The Supreme Court, Appellate D).

vision. 70 AD.2d 934, 417 N.Y¥.S.2d 52)

affirmed and the student appealed The

Court of Appeals, Mever, J., held that the

college was bound by its guideline providing

that student suspended or expelled for

cause other than academic failure, without

having had hearing before college coun,

had mght to be heard by student-faculty

hearing board which must present its find.

ings to college president for fina! determi.

mation, thus it was improper to suspend

Student, in part on nonacademic grounds

even though she had met informal], witb

college officials, and student was entitled t

review of her suspension by the board an

the president

Order of Appellate Division reversed

and case remanded to Supreme Cour with

directions

Gabnelli, J., dissented and voted to af-

firm in the separate opinion in which Cooke

C. J., and Jasen, J., concurred

1. Colleges and Universities 9

Though matters involving academic

standards of college are subject to judicial

scrutiny, issue reviewed in such case wu

whether college has acted in good faith or

its action was arbitrary or irratios.al, but in

cases involving suspension or expulsion for

causes unrelated to academic achievement,

courts look more closely at actions of educa-

tional! institutions

TEDESCHI v. WAGNER COLLEGE

Cite as 404.N.E.26 1302

answer correct!) even a simple questior

2 Colleges and Universities e9

When university has adopted rule or

guideline establishing procedure to be fol-

jowed in relation to suspension or expulsion,

that procedure must be substantially ob-

served.

3. Colleges and Universities e=9

Private college was bound by its guide-

line providing that student suspended or

expelled for cause other than academic fail-

ure, without having had hearing before col-

jege court, had right to be heard by stu-

dent-faculty hearing board which must

present its findings to college president for

fina] determination; thus it was improper

to suspend student. in part on nonacademic

grounds, even though she had met infor-

mally with college officials, and studer:

was entitled to review of her suspension b)

the board and the president: USCA

Const. Amends 5, 14

Harry Grossmar.. New York City. for av-

pellant

Howard Newman, Kew Gardens. for re-

spondent

OPINION OF THE COURT

MEYER, Judge

This appeai concerns the effect of guide-

lines or rules published )v a private educa-

tiona! institution upon its right to suspend 4

student. We held that such an institutior

is bound by its own rules and, therefore

reverse the order of the Appellate Division

and remit the matter to the Supreme Court,

Richmond County, for entry of a judgment

in accordance with this opinion

Plaintiff Nancy Jean Tedeschi was admit-

ted to Wagner College, a private institu-

tion, in September, 1976. She was a part-

time student taking courses in mathematics,

Latin and psychology. Her performance

during the fall semester presented both aca-

demic and socia) problems, however. Dr

Thompson, her Latin professor, testified

that she did not participate in class, did not

know the required matena! and only once

of the severa! times called upon was able to

N.Y. 1303

about Latin grammar Her conduct during

class was also disruptive in that three or

four times dumng each penod she would

pick up her handbag and leave the room

returning after two to five minutes

On the evening of December 20, 1976 Ms

Tedeschi sat for her Latin examination, but

at the end of it dramatically tore up her

blue book and did not hand it in. In re-

sponse to her question. Dr. Thompson ad-

vised her that without an examination score

her grade for the course would be an F

Beginning at 4a. m the next morning and

continuing until late in the evening of De-

cember 22. Dr Thompsor was subjected to

a barrage of telephone caiis in which Ms

Tedeschi repeatedi, threatened to comm:

suicide, or to “fix” Dr Thompson. and a:

one point appeared in a distraught cond

tion at the fron: door of his home. On):

when the police were summoned and ad-

vised plaintiff of the possible criminsa: cor-

sequences did the ca!!s cease

Or January 10. 19°77 through his secre-

tar.. Dr Wende! the academic dear. cor-

tactec plaintiff and her mother by tele-

phone to arrange a m-eting with t

the purpose of discussing p.aintuff's

demic situation, in view of her incomplete

grades in two courses Plaintiff

refused to meet siating that there was n

problem There followed. nevertheless an-

other semes of harass. ng calls bs plaint:ff tc

Dr Thompsor Later tha: evening ir a

telephone conversation between Dr Thomp-

son and Nancy s mother. Mrs Tedesch. re-

fused to discuss the matter college

officials and insisted that any probier

should be presented to her in a forma! letter

from the college The next day planntiff

was orally advised by Dr. Wende! that she

was suspended by the college because of her

bad character and the repeated disruption

of her Latin class Thereafter she met with

the academic dean, the dean of students

and an assistant to the president, who test.-

fied that during the interviews plaintiff's

conduct was irrational and discussion fruit-

less By letter dated January 18, 1977

plaintiff was advised by the dean of stu-

aca-

however

with

1304 NY 404 NORTH EASTERN

dents, Dr. Guttu, that after consultation

with Dr. Wendel and other members of the

faculty and the administration, she was

“withdrawn from classes for the 1977

spring semester” but could, if she wished,

reapply in the fall. Shortly thereafter

plaintiff's tuition for the spmng semester

was refunded Plaintiff's mother testified

that she called the school severa! times to

arrange a heamng, but without success

Plaintiff then began this action alleging

that she had not been granted a hearing or

afforded an opportunity to defend herself

and that she had been arbitrarily frustrated

in completing her education. She asked for

ar order reinstating her and for damages

Tne tma’ court found that there was

constitutiona! violation since Wagner Col-

lege was not State involved, that it could

not review the decision te suspend plaintiff

on the basis of her academic record, that

aspects of her suspension

trary, that the college

t in good faith, that the

procedure followed was believed

laintiffs best interests and that

prove any damage Or

appeal from the judgment for defendant

enterec om that decision, the Appeliate Di-

by a divided court The

ma)omt\ took note of the college guideline

quoted below but held that plaintiff had

rebuffed severa) attempts by the college to

the disciplinary

‘was

wision affirmed

arrange a conference. the dissenters rea-

soned that the relationship betwecn a col-

lege and its students is contractua! and that

the college was bound to follow its owr

rules relating to suspension Though we do

not arrive at our conclusion on exactly the

same reasoning, we agree with the dissen-

ters below that the college has not con-

formed to the procedure its guidelines pre-

scribed and that plaintiff is entitled to have

it do so. We, therefore, reverse

The guideline referred to is part of a

publication distributed by the office of the

dean of students entitled 1976-1977 Guide-

lines of Wagner College. The portion perti-

nent to this appea! reads

“Whenever it shall appear that any stu-

is not making satisfactory progress in

dent

REPORTER, 2d SERIES

his studies, and that his scholastic Standing

does not meet the requirements specified b\

the Committee on Academic Standards he

shall be discharged from the College If for

any other cause a student is deemed to be

an unfit member of the College, the Dear

of Students may notify parents or guard).

ans in order that they may have an oppor.

tunity to withdraw the student

“A student may be suspended or expelled

from the College by the Dean of Students

or the Dean of Academic Affairs. If he is

suspended or expelled for any cause other

than failure in his academic work, and has

not had recourse to a hearing before ar

established College Court, he shal! have the

right to be heard by the Student-Facult

Hearing Board which shal! present its find.

ings to the president of the college for fina

determination

The differentiation between suspension or

expulsion for academic unfitness and sus.

pension or expulsion for causes other than

academic failure drawn in guideline

reflects the dichotomy in decisiona

drawn along similar lines

[1] As is recognized by our recen: de

sion in Matter of Olsson v. Board of Higher

Educ, 49 N Y.2d 408, 426 N.Y.S.2d 2*. 402

N.E.2d 1150. and the cases cited thereir

because matters involving academic star

dards generally rest upon the

judgment of professiona! educators. courts

are reluctant to impose the strictures of

traditiona! lega! rules Though such mat

ters are subject to judicial scrutiny. the

issue reviewed in such a case is whether the

institution has acted in good faith or its

action was arbitrary or irrationa

nat

law

sudjective

Suspension or expulsion for causes unre-

lated to academic achievement, however

involve determinations quite closely akin to

the day-to-day work of the judiciary

Recognizing the present day importance o!

higher education to many, if not most, em-

ployment opportunities, the courts have

therefore, looked more closely at the actions

of educationa! institutions in such matters

Tne legal theory upon which review

should be predicated in such cases 1s, how-

TEDESCHI v. WAGNER COLLEGE N.Y

Cite as 404 N£26 1302

ever, not entirely clear. Plaintiff argues,

and the dissenters in the Appellate Division

agree, that the student-private college rela-

tionship is contractua! and that it is an

implied term of the contract that rules such

as the Wagner College Guidelines will be

adhered to by the college There is support

for that concept in decisional! law (Matter of

Carr v. St John’s Univ., N.Y., 17 A.D.2d

632, 231 N.Y.S.2d 410, affd. 12 N.Y.2d 802,

235 N.Y.S.2d 834, 187 N.E.2d 18; People ex

re!. Cecil v. Bellevue Hosp. Med. Coll., 60

Hun. 107, 14 N.Y.S. 490, affd. 128 N.Y. 621,

28 N.E. 283, Goldstein \. New York Unis.,

76 App.Div. 80, 78 N.Y.S. 739. Drucker

New York Univ., 59 Misc.2d 789, 300 N.Y

§.2d 749) and in lega! commentary as wel!

(Beach, Fundamenta! Fairness in Search of

s Lega! Rationale in Pnvate College Expu-

sions, 2 J.Coll. & Univ.L 65, at pp 65-70

79-81; Center for Law & Education, The

Constitutiona! Rights of Students Analysis

and Litigation Materials For The Studen: s

Lawyer, pp 371-372 [hereafter “Student's

Lawyer]: Note 48 Ind LJ 253. Note 37

Ohio State LJ. Gu» Nolte ve tale LJ

1362)

Contract theory is not wholly satisfacto-

ry, however, because the essential!) fiction-

a) nature of the contract results in its gen-

eraliv being assumed rather than proved

because of the difficult, of its application

and because it forecloses inquiry into, and a

balancing of, the countervailing interests of

the student on the one hand and the institu-

tion on the other (see Matter of Ryan \

Hofstra Univ., 67 Misc.2d 651, 659. 324 NY

S.2d 964; “Students Lawyer”, at 7 372

Abrams & Hofman, Common Law Rights

for Private University Students Beyond

the State Action Principle, & Yale LJ. 120,

122, 143-144 [hereafter “Common Law

Rights"}; Rabban, Judicial Review of the

University-Student Relationship: Expulsion

and Governance, 26 Stan.L. Rev. 95, 97, 104

106 [hereafter “Judicia! Review")). An

added problem is that when urged in aca-

demic achievement as distinct from nonaca-

demic matters the contract tends to be lim-

ited to the implied in law condition of good

faith, i. e€., not to act arbitranly (cf. Matter

of Olsson \. Board of Higher Educ., supra )

4 NE 20-29

1305

to the ultimate confusion of the rules appl)-

cable in the two situations

An alternate basis for review of nonaca-

demic disputes between students and pn-

vate colleges, the application of the princi-

ples of the law of associations. is supported

by case law in some other States ( Ba/timore

Univ. v. Colton, 98 Md. 623,57 A. 14, Ab

bariao +. Hamline Univ. Schoo! of Law,

Minn.. 258 NW.2d 108, 112, Common-

wealth ex rel Hill v. McCauley, 3 Pa. Coun-

ty Ct. 77, see Student Bar Assn. v. Byrd,

293 N.C. 594, 239 S.E.2d 415, Blatt v. Uni-

versits of So Cal, 5 Cal App.3d 935, &

Cal.Rptr 601) as wel! as b. legal commen.

tators (Chafee, Interna! Affairs of Associa-

tions Not for Profit, 43 Ham L Re. 993

996. 1013-1014. 1026, 1028-1029. Deveiop-

ments in the Law—Judicial Contro! of Ac-

tions of Private Associations, 76 Han L

Rex 983, 989. 1011, 1014 1032 [hereafter

“Deveiopments’}]. “Students Lawyer”. at

pp. 373-374

“Common Law Rights’. at pp

140-150, *Judicia: Review’, at pp 112-117

119-324

Tne law of associations accords judicia

} ¢ c stir , ne .

reiie: tO an association Memobder suspence

or expelled without adherence to its rules

(Chafee. op cit. at pp 1014. 101©102

“Developments, at pp 995, 1021. 14 CJS

1288-1289. Clubs. § 17. 6 Am.Jur.2d 465

468, Associations & Clubs, §§ 36.37; The

courts of this State have consistent!) recog

nized the rghit to such relief (Browne

Hibbets, 290 N Y 459.49 N E.2d 713. Polrr

+. Kaplan, 3° NY. 277, 177 NE 833. §

mons \ Berry, 440 NY. 4638. 148 NE 636

People ex re! Devere!] + Musica! Mut Pro

tecuve Union, 118 NY. 101, 3B NE 128

Peopie ex re! Meads \ McDonough, & Apr

Div. 591,35 NYS 214, Loubat » Le Ro)

40 Hun. 546)

The paralie! between associations and

universities is, of course, not exact since

Students do nol participate in the gover-

nance of a university with the same voice as

general!) do members in the functioning of

an association (cf “Common Law Rights’

at pp. 144-145) The situation is further

coniused by the facts that at least in part

the association law under discussion is stat-

1306 \.Y

ed in terms of contract (Browne v. Hibbets,

supra, 290 N.Y. at p. 466, 49 N.E2d 718;

Polin v. Kaplan, supra, 257 N.Y. at p. 282,

177 N.E. 883), and that in several cases the

obligation to follow its own rules has been

applied to a pmvate university without ref-

erence to contract law (Matter of Kwiat-

kowski v. Ithaca Coll., 82 Misc.2d 43, 48, 368

N Y.S.2d 973; Matter of Ryan v. Hofstra

Lniv., 67 Mise_2¢ 651, 660-661, $24 N.Y.S.2¢

964, supra, see Matter of Olsson v. Board

of Higher Educ., 66 A.D.2d 196, 198. 412

N.¥.S.2d 615, rev. on other grounds 49

\ Y¥.2d 408, 426 N.Y.S.2d 248, 402 N.E.2d

1150. supra, Matter of Sofair v. State Uni

of NY Upstate Med Center Col! of Med:-

cine. 54 A.D.2d 287, 292. 388 N.Y.S 2d 458

rev on other grounds 44 N Y.2d 475, 37%

N Y.S.24 730, 406 N.Y.S.2d 276)

[2] We do not find it necessary in the

presen: case to resolve such problems as

ma. amse out of the differen: theoretica

predicates Whether analogy to the law

of associations, on the basis of a supposed

contract between university and student, or

simpl\ as a matter of essentia! fairness in

the somewhat one-sided relationship be-

tweer. the institution and the individual, we

hold that when a university has adopted a

rule or guideline establishing the procedure

to be followed in relation to suspension or

expulsion that procedure must be substan-

tually observec

We are brought then to a consideration of

the guideline in question in relation to the

suspension of Nancy Tedeschi Had her

suspension been solely for unsatisfactor)

progress in her studies, the guideline would

have imposed no further obligation on the

college and the only judicially reviewable

question would have been whether it had

acted in good faith (Matter of Olsson v

Board of Higher Educ., supra). Moreover,

there was substantial compliance with 80

much of the guideline as required that Nan-

cy's parent be notified that Nancy was con-

sidered unfit for a cause other than aca-

demic, since Dr. Wende! sought to arrange

a meeting between Mrs. Tedesch: and col-

lege officials to discuss Nancy's problems

404 NORTH EASTERN REPORTER, 24 SERIES

The guideline permits either the dean of

students or the dean of academic affairs to

expe! or suspend a student. The withdraw.

a) letter forwarded on January 18, 197 by

the dean of students was, therefore, in oop.

formance with its provisions. But the

guideline does not stop there. Jt requires 3

further hearing by the Student-Faculty

Hearing Board and review of that board's

findings by the president of the college in

any case in which suspension is for a cause

other than academic failure and the student

has not had a hearing before an established

college court

Dr. Guttu testified that .»e college court

normally dealt with civil disorders or com.

plaints by one student against another, but

that cannot avail the college for it is undw

puted that no court or board of an) kind

ever considered Nancy's case As to the

cause for Nancy's suspension. the Appellate

Division found that it was based on her

irrational and disruptive conduct It. thus

apparentiy tacitly overruled the Tria!

Judge's reference to academic standing as «

cause. but even if 1 did not, the further

proceedings required by the guideline would

still be mandated This is-because a sus-

pension for both academic and other causes

is necessarily, at least in part, @ Suspension

for a cause other than academic failure

That is not to say thal the board would

have the mght, not given it by the guide-

line, to review Nancy's scholastic standing

as a ground for suspension, but simply w

require that sbe have what the guideline

accords her review of the cause other than

academic failure that it involved

The college argues that Nancy's informa’

meetings with the two deans and the pres)-

dent's assistant was sufficient compliance

with the guideline. Though those meetings

may have been sensitive and fair, as the

Tria! Judge indicated, it constituted no ac-

ceptable substitute for a hearing board

composed of both students and faculty

The college also suggests that the refusa! of

Mrs. Tedeschi to meet with its officials con-

stituted a waiver of Nancy's hearing nghts,

but the guideline itself refutes that, since

give the parent the possibility of avoiding

_ es

TEDESCHI v. WAGNER COLLEGE N.Y. 1307

Che as 604 N.E36 1302

embarrassment by withdrawing the stu-

dent. Nor can we accept the suggestion

that plaintiff was obliged to make a forma!

demand for a heamng before the Student-

Faculty Hearing Board. Not only is the

guideline phrased in mandatory terms

(“shall have the mght to be heard”) but also

it was the obligation of the college in ef-

fecting the suspension to cal! plaintiff's at-

tention to the further procedures provided

for by the guidelines (Loubat v. Le Ro}. 40

Hun. 546, 552, 556 supra) Even were that

not 80, plaintiff's complaint which specifi-

cally noted that she had never had a hear-

ing would constitute a sufficient demand

(see Fred v. Straussman. 4) N Y.2d 376

$80, 393 N.¥.S.2d 33:1. 361 NE2c 9&

[3} Under the guideline plaintuff was

properly suspended but was entitied to re-

view of her suspensior by the hearing board

and the president) Se much of the com-

plaint as sought mone, damages and the

mght to a due process heamng based on

claimed “state action was properl, d

missed, but she was entitied to judgment

directing review by that bod, and that of!

cia! as the guidelines require

A few words with respec: to the disser:

are in order. What the guideline conterr

plates, and what this op:mion holds that it

requires (supra, pp 1306. 1307) is review

by the Student-Facult, Hearing Board anc

by the president. of the nonacademic cause

for Ms. Tedeschis suspension The appar

ent purpose of that review is the differen:

viewpoint that ma) be taken by a hearing

board composed of faculty and student

than will be taken by a dean, whether the

dean of students or the dean of admissions *

No reason, other than the possible burden

on the college in holding such a hearing, is

suggested by the dissent for denying her

that right

The crux of the dissent is contained in its

references (p. 1309) to elevating “forma!

legalistic principles over the dictates of or-

*“TE)ven if the facts are undisputed and the

Geterm:nauve issue i whether the student s

achons warrant his expulsion under existing

pol... or rules. the student should have some

Opportunity, to justify, his behavior so thai the

dinary common sense” and to “a mechanis-

tic approach to the law’. As Mr. Justice

Felix Frankfurter wrote almost 40 years

ago in McNabb v. United States, 318 U.S

$382, 347, 68 S.Ct. 608, 616, 87 L.Ed. 819,

“The history of liberty has largely been the

history of observance of procedural safe-

guards.” If that be true in the dealings of

the State with citizens enmeshed with its

emmina! justice system it is no less true in

the dealings of a college with the members

of its student body. To suggest, as does the

dissent, that the college can avoid its own

rules whenever its administrative officials

in their wisdom see fit to offer what they

consider as a suitable substitute is to reduce

the guidelines to a meaningless mouthing of

words We do not countenance that in oth-

er relationships nor should we between stu-

den: and college

According!\. the order of the Appellate

Division should be reversed, with costs, and

the case remitted to Supreme Court, Rich-

mond Count). with directions to enter judg-

ment reinstating piaintiff as a student for

the Sepiember. 1980 term of the college

unless pmor to the opening of that term she

has been accorded a hearing by the Sto-

ri-PFacu it) Hearing Board

GABRIELLI. Judge (dissenting

More thar three and one-ha!f vears ag:

Nanc\ Jean Tedeschi, a part-time. nonma

riculated student. was forced to withdraw

frorn classes at Wagner College due to her

disruptive anc sometimes threatening con-

duct in and out of the classroom Toda). a

majomty of this count, after reviewing the

extensive evidence that was offered at tna!

has nevertheless directed that the college

conduct a forma! hearing, presumably for

the purpose of determining the correctness

and wisdom of its omgina! decision Since |

am persuaded that such a hearing could be

nothing more than a painful exercise in

futility given the peculiar circumstances in

this case, | am compelled to dissent

Gecision making tribunal! has available the ar

guments of both sides and can form a balanced

juigment (Developments In The Law—Aca

demic Freedom 8! Harn lL Rev 1045. 1136

1139

1308 NY 404 NORTH EASTERN

Preliminarily, it must be noted that the

Trial Judge in this case found the testimony

of the schoo! officials regarding Ms. Tedes-

chi's disruptive and irrational behavior to be

“extremely credible” (93 Mise.2d, 510 at p

514, 402 N.Y.S.2d 967) Also credited were

the statements made by the schoo! authori-

ties concerning their unsuccessful efforts to

resolve this delicate matter privately

through informa) conferences. Inasmuch

as the Appellate Division affirmed without

making new findings of fact, we must ac-

cept these findings as true for purposes of

the present appea! (CPLR 5501, subd ([b);

Coher. and Karger. Powers of the New

York Court of Appeais, pp 476480)

The statements of the schoo! authorities

taker. together, paint a portrait of a dis-

traught. emotionally disturbed young wom-

ar uno seemed incapabie of controlling her

own feelings of aggression and was equalis

neapabie of fulfiiling her respons:bilities as

a student in an institution of higher learn-

ing Ms Tedeschi hab:tual’s disrupted her

Latin class throughout her first semester at

the college and. indeed. failed to complete

tuc of the three courses in which she was

enrolled Tne rapid deterioration of her

emoviona! state culminated in a series of

harassing telephone calis and suicide

threats which, understandably, alarmed the

authomties at the schoo) Unoer the cir-

cumstances. it carnot be said that the col-

ege officials reacted in an arbitrary or un-

a’ manner To the contrary. in attempt-

ng to bring Ms Tedesch: and her mother in

for an informa! interview to discuss the

student's academic and emotional difficul-

ties, the school officials obvious!y were hop-

ing to reach a solution which would spare

this unfortunate young woman further un-

necessary embarrassment. That this is so is

reflected in the college's fina) letter to Ms

Tedeschi, which stated that she was being

asked to withdraw from classes, but indi-

cated that she was free to apply for read-

mission if and when she straightened out

her emotional difficulties 1 cannot imag-

ine a fairer resolution of the immediate

1. Ms Tedeschi s mother testified that she had

telephoned the college anc vequested s hearing

for her daughter Later im her test:mons,. how

REPORTER, 24 SERIES

problem, particularly in view of Ms. Tedes.

chi's continued inability to discuss the con.

cerns of the schoo! officials in a calm and

rational manner

Yet, three and one-half years after the

fact, a majority of this court concludes that

the college is required to afford Ms. Tedes.

chi a heamng. What possible constructive

purpose would be served by such a bearing

we are not told. Ordinarily, s hearing

serves the salutary purpose of permitting

all sides to air their conflicting versions of

events and bring forth al! of the disputed

facts. In the educational setting in particy.

lar, the United States Supreme Court has

described the purpose of a disciplinary bear.

ing as “an effort to inform [the student] of

his dereliction and to jet him tell his side of

the story in order to make sure that an

injustice is not done” (Goss v Lopez 419

US 565, 580.95 S.Ct 729, 739, 42 LEd2d

725) Furthermore, “requimng (an) infor.

ma! hearing permitting the student tw give

his version. of the events wil] provide gs

meaningful hedge against erroneous action

At least the disciplinarian will be alerted to

the existence of disputes about facts and

arguments about cause and effec.” (id., at

pp 583-554.95S Ci at p. 741) In the case

of Ms. Tedeschi, however, there was never

any reason to believe that the student had

an alternate version of the facts to present

to a neutra! hearing body. To the contrary,

the evidence accepted by the tria) court

demonstrates that Ms Tedeschi and her

mother had repeated!, rebuffed efforts by

the schoo! authornties to elicit their side of

the story. When Ms Tedeschi finally did

come in to speak with the academic dean

and the other schoo! officials, she was un-

able to provide a rationa! or coherent expla-

nation for her conduct. Significantly, ac-

cording to the testimony that was credited

by the Tria! Judge, Ms Tedeschi never re-

quested an opportunity to have her case

heard by # neutral hearing body, although

she did speak to school officials personally

on at least two occasions.’ Indeed, every-

ever. the stucent’s mother admitted “| Gén't

say heanng but | said | would like to come wih

Nancs and see what w happening m he

“bayer

ee Mit oat

TEDESCHI v. WAGNER COLLEGE

N.Y

1309

Cie as 464 N.£.26 1382

thing about the behavior of Ms. Tedeschi

and her parent indicated that they had no

“yoterest in presenting their case to college

officials?

It has been argued that the schoo! had an

affirmative obligation to notify Ms. Tedes-

chi of ber right to a hearing before the

Student-Faculty Hearing Board pursuant to

the college’s regulations. Although the

regulation relied upon by the majority

states that the dean of students “may noti-

fy parents or guardians in order that they

may have an opportunity to withdraw the

student” when the student is “deemed to be

an unfit member of the College”, however,

there is nothing in the regulation that sug-

gests that the schoo! has an affirmative

obligation to give the student forma! notice

of his right to a hearing pror w his suspen-

sion from classes In any event. the specia!

facts presented by Ms. Tedeschi's case can-

not be ignored. In view o7 her continued

inability to conduct herself in a rationa!

manner, it cannot be said that a hearing

before a student-faculty board would have

been an appropriate or effective safeguard

of her interests Inasmuch as the

concerning her behavior were not serious!

disputed, ] cannot conclude tha: the schoo

authonties acted unreasonabls or unfair!

because they did not think tw invite Ms

Tedeschi to present her case to a heanng

board

Nevertheless, the majorty, de-

finitively adopting any particular theors.

now holds that the college was bound to

follow its interna! regulations and provide

Ms. Tedeschi with a heanng even in the

absence of a request for an opportunity

present her case. Presumably, it has done

so in order to vindicate the genera! princi-

ple that once a university establishes and

publishes a rule outlining the procedures to

facts

without

schoo!” This belated request for a conference

was made only after the schoo! sent the fina!

suspension letter to Ms Tedeschi Inasmuch

as the mother had previously repulsed the ef-

forts of school administrators to resolve the

matter in & private intermew. she must be

deemed to have waived by her conduct any

mght she may have had to present arguments

in Opposition to her daughters suspension to

the schoo! suthonties

be followed in disciplinary matters, it must

invariably adhere to that rule’ There can

be no disagreement with this concept as «

genera! principle of law. In a case such as

this, however, our application of such gen-

era) principles must be tempered by our

understanding of the somewhat unusua!

facts. Ms. Tedeschi was suffering from an

emotiona! breakdown at the time in ques-

tion. Her suspension from classes for the

spring semester was not a “disciplinary”

measure in the traditional! sense, but rather

was a recognition by the schoo! officials

that her continued attendance would be

fruitless from an academic standpoint

Given these facts, to require that the col-

lege adhere wo its published procedures re-

garding student discipline would be w ele-

vate forma! legalistic principles over the

dictates of ordinary common sense |! can-

not concur ap

proach to the law

In the recent case of Matter of Olssor +

Board of Higher Educ. 49 N.Y .2d 408, 426

NY.S2d 248. 402 N E2d 1150, this court

stated that college officials must be accord-

ed wide latitude in evaluating the academic

progress of their students (cf Board of Cur-

ators of Lnis of Mo v. Horowitz. 435 US

7&, 9§ SCtr. 948, 55 L.Ed 2d 124) In ar

effort to overcome the rationale in Olssun

as wel! as the college's own rule permitting

academic dismissals without a prior hearing

the majority asserts that the decision u

dismiss Ms. Tedeschi was not rooted in aca-

demic concerns The arguments advanced

by the majority in connection with this as-

sertion are not convincing First, the ma-

jonty erroneously states that the Appellau

Division's finding that the dismissa! was

based upon Ms. Tedeschi’s “irrationa! and

disruptive conduct” somehow “tacitly over-

ruled” the Tria! Judge's conclusion that the

2. The majonty states that Ms Tedesch: s com

plaint in the instant action constituted a “suff:

cient demand’ for s heanng | fail to see

however. how a complaint served months after

the dismissal can be regarded retroactivels as a

substitute for a timely notification to the col

lege that Ms Tedeschi wished to be heard

1310 ».Y

dismissa! was grounded in academic rea-

sons. Next, the majority reasons that, even

if this is not the case, a hearing stil) should

have been required because the schoo! offi-

cials were motivated, at least in part, by

reasons unrelated to Ms Tedeschi’s academ-

i¢ failure. 1 find, however, that the majori-

ty’s attempts to parse out a distinction be-

tween dismissa] for academic failure and

dismiasa! for “other reasons” are, in this

case, unavailing, since, in any event, Ms

Tedeschi was plainly suspended because of

her inability to function in the academic

setting Given the student's failure to

make satisfactory progress in her studies as

wel] as her repeatedly disruptive behavior

in class. it cannot be said that the authori-

ties at Wagner College were not acting in

the proper exercise of their academic discre-

tior, wher thes made the decision to su:-

pend Ms Tedeschi without a prior hearing

Indeed. even the majority acknowledges

that Ms Tedesch. was terminated. at leas:

r. part. as @ result of her academ.c por

formance According!y, she was noi ent-

tled to a hearing under the regulations pro-

mulgated by the college

In closing. ] would note that the form of

relief ordered by the majority serves only ti

highlight the problems inherent in its ay

proach to this case The majority has heid

that Wagner College must either reinstate

Ms Tedeschi or hold a belated forma) in-

quiry into the facts surrounding her dis-

missa! 1 cannot perceive. however. what

possible purpose could be served b) such a

heamng at this point, particularly since

three separate courts have already reviewed

the facts underlying the dismissa). If Ms

Tedeschi has recovered from her emotional!

difficulties in the three and one-half years

since she attended class at Wagner College,

there presumably would be no obstacle to

her apolying for readmission. If. on the

oth ~ hand, she has not yet managed to

bring her problem under control, a ritualis-

tic hearing regarding events long past will

not advance her interests

For al] these reasons, | respectfully dis-

sent and cast my vote in favor of affirming

the decision of the Appellate Division.

404 NORTH EASTERN REPORTER, 2d SERIES

JON®TS, WACHTLER and FUCHS. é

BERG, JJ., concur with MEYER, J.

GABRIELLI, J., dissents and vote 4

affirm in @ separate opinion in which 2

COOKE, C. J., and JASEN, J., concur -

Order reversed, with costs, and the cags

remitted to Supreme Court, Ri

County, with directions te enter perme; ,

in accordance with the opinion herein. a

‘

49 N Y.2d 668

The PEOPLE of the State of New

York. Respondent,

Victor CASASSA, Appellant.

Cour: of Appeais of New York

April 1, 198¢

Defendant was convicted in the County

Court. Nassau County, Raymond Harring.

ton. J.. of murder in the second degree and

he appealed The Supreme Court, Appel

late Division. 6 A.D.2d 1032, 411 N.Y.S2d

47%. affirmed The Court of Appeals, Ja-

sen. J., held that (1) not al! mental infirmi-

ties which do not arisé to the level of insani-

ty constitule extreme emotiona! distur-

bance. (2) determination of whether there

was a reasonable explanation or excuse for

a particular emotional disturbance should

be made by viewing the subjective situstiom

in which defendant found himself and

external circumstances as he

them at the time and assessing from

standpoint whether the explanation or

cuse for his emotiona) disturbance ist

able: (3) trier of fact is never requi

find mitigation on any particular set.

facts. (4) trial court did not abuse its

cretion in failing to find extreme e

disturbance in the instant case; (5)

NAPOLITANO v. PRINCETON UNIV. TRUSTEES N.J. £79

Che as, 453 A.26 279 (NJSuper.Ch 1862)

found in it Perhaps plaintiff's self-concern

blinds her to the fact that the penalty im-

on her, as a leader of the University

community, has to have some educative ef-

fect on other student members of the com-

munity. In addition, to paraphrase the

t, “the child is mother to the woman,”

we believe that the lesson to be learned

here should be learned by Gabrielle Napo.

tano and borne by her for the rest of her

life. We are sure it will strengthen her in

her resolve to become a success in whatever

endeavor she chooses

The judgment of the Chancery Division is

affirmed, with no costs to any part)

186 N.J. Super 57€

Gabrielle NAPOLITANO. Plaintiff.

The TRUSTEES OF PRINCETON UNI-

VERSITY. William G. Bowen. individu-

ally and as President of Princeton Lni-

versity. Peter Onek. individualls and as

Assistant Dean of Student Affairs of

Princeton University, and Sylvia Molloy.

Defendants.

Superior Court of New Jerse:

Chancery Division, Mercer Coun:

Decided from bench June 2. 1982

Supplementec June 30. 1982

University student brought action to

compe] the institution to issue her a Bache-

lor of Arts degree at its regular June com-

mencement exercise. The Supenor Court,

Chancery Division, Mercer County. Dreier,

J. S. C., held that: (1) evidence supported

finding: of plagiarism, and (2) although

plaintiff had an otherwise unblemished aca-

demic record and although other alterna-

tives were available, it was for the universi-

ty to choose to withhold plaintiff's degree

for one year.

Complaint dismissed

Judgment affirmed, 455 A.2d 263

1. Colleges and Universities 9

Although if it believed student's claim

that she knew that professor was familiar

with work from which she quoted without

attribution in term paper and that because

of her lack of proficiency in Spanish, the

quotations, which were in Spanish, would

immediately be recognized, disciplinary

committee might have found that offense

was merely an unintentiona! academic in-

fraction, the evidence was sufficient to up

hold finding of plagiarism, defined as delib-

erate use of any outside source without

proper acknowledgment, and under doctrine

of judicia! abstention the court would not

disturb that finding

2. Colleges and Universities e=9

In a student discipline case a court ma}

not substitute its own views for those of a

duly competent administrative body within

a private college or university and court

ma\ not act as governmental! overseer ex-

cept where judicial], cognizable issues ca!!

for its intervention to protect the nghts of

an individua! or tne pubs

3. Colleges and Universities 9

In determining whether discipline im-

posed on university student for alleged pla-

giarism violated contract to award a Bache-

lor of Arts degree if student complied with

university rules and regulations the lega!

Standard agains: which to measure univer-

Sity s conduct was that of good faith and

fair-dealing

4. Colleges and Universities <9

A court should not engraft its own

views On a private university's student dis-

ciplinary process so long as the standard of

good faith and fairdealing has been met

and the contract between the state and the

university has otherwise been breached

5. Colleges and Universities <9

University did not act in bad faith in

withholding plaintiff's Bachelor of Arts de-

gree for one year because of infraction of

university regulations relating to academic

280 NJ

fraud. namely, plagiarism, notwithstanding

plaintiff's otherwise exemplary perform-

ance and otherwise unblemished record or

fact that there existed other alternative

forms of punishment

6. Injunction 22

Request for injunction against private

university's giving notice of its plagiamsm

adjudication to any law school to which

plaintiff student had applied was moot as

notanety derived from action challenging

withholding of Bachelor of Arts degree for

one year marked plaintiff's record more

permanently than anything the institution

might place on her transcript

Nathan M Edelstein. Newark, for plain-

tiff (Brener, Wallack & Hill, Princeton. at-

tornevys)

Wiliam J. Brennan, II], Princeton, for

defendants (Smith, Stratton, Wise, Heher &

Brennan, Princeton, attorneys)

DREIER, J.S.C

Plaintiff instituted this action to compe!

defendant Prnceton University to issue her

Bachelor of Arts degree at its regular June

commencement exercises, and for other in-

cidenta! relief, Defendant maintained that

as a result of a decision of its Committee on

Discipline, which was confirmed by the uni-

versity president, plaintiff's degree was to

be withheid for the pernod of one year as

penalty for her infraction of the universi-

ty's regulations relating to academic fraud

The university contends that plaintiff plag-

iamzed the bulk of a 12-page term paper,

written in Spanish, and submitted in Span-

ish 341 (The Spanish American Novel) as a

critical review of Cien anos de Soledad (100

years of Solitude) by Gabriel Garcia Mar-

quez. Plaintiff, a student with a previous!y

spotiess record and a 3.7 cumulative grade

point average, admitted the presence in her

term paper of long passages quoted without

attribution from Cien anos de Soledad: una

interpretation, by Josefina Ludmer (“Lud-

mer”), but claimed that this did not consti-

tute plagiarism within the definition of that

offense in the Princeton handbook, “Rights,

Rules and Responsibilities” (1980). A

453 ATLANTIC REPORTER, 2d SERIES

By way of defense before the Committee

on Discipline, the university president, Dr

Bowen, as wel] as this court, plaintiff ex.

plained that she had cited the Ludmer

source five times in footnotes and once in

the text, but had failed to use quotation

marks or other textual! or footnote citations

for the bulk of the disputed material. deter.

mining the same to have been unn

She noted that the Ludmer book had been

placed on reserve for her by her Spanish

professor, who had suggested she use that

source as the basis for her paper, therefore,

she knew that the professor was familiar

with the volume in question. Plaintiff ex-

plained that she speaks and writes only

halting Spanish, and had taken the course,

not because she needed the credits for her

degree (she was an English major), but

merely to become more familiar vith Span-

ish literature. She expected that her exten-

sive quotations from Ludmer would imme

diately be recognized. since the grammati-

ca] structure and flowing style were clearly

bevond her capability in written Spanish

Plaintiff admitted that she produced a poor

paper and perhaps deserved tc fai) the par-

ticular assignment. but steadfastl, main-

tained that she had no intent to deceive her

professor—she merely failec to follow the

prescribed rules as to the use of quotation

marks or other attribution references

The student handbook recites that the

usual penalty for academic fraud is “one

years suspension or required withdrawa)

from the University.” This cour has re

viewed many of the disciplinary files (after

requesting the deletion of the students’

names to preserve anonymity). and has

found that the actual penalties ranged from

20 days disciplinary probation (until gradu-

ation, for an offense that was adjudicated

at the end of a student’s senior year) to

explusion (for the submission of a paper

wholly plagiarized from an obscure source).

Far from being uniform, the penalties ap-

peared to be imposed on an ad hoc basis,

with suspension (or the withholding of the

degree for seniors) being the exception

rather than the rule.

NAPOLITANO v. FniNCETON UNIV. TRUSTEES

N.J

Cre as. 453 A246 278 (NJ.Super.Ch 1962)

The case was first presented to this court

as an emergent matter because of the prox-

jmity of graduation, which was scheduled

for June 8, 1982. Initially, the court re-

quested that the attorneys go back to their

clients and try to resolve the case without

the necessity of adjudication, and with due

recognition of the university's own practices

and plaintiff's theretofore exemplary rec-

ord. When the case was reported back as

not subject to settlement, the court ordered

accelerated depositions and prepared to

process the matter on an expedited basis,

scheduling the first forma! hearing for the

last week in May.

At this hearing the court considered the

procedures followed by the university in

dealing with plaintiffs alleged offense—

specifically. did the university comply with

its own rules and regulations” At issue

initially was the defirition of plamanmsm

The university had applied a definition

which held as irrelevant the student's intent

(or lack thereof) to deceive the reader

Plaintiff urged that the history of the hand-

book definition demonstrated tha: intent

was not only relevant but centra: tc the

concept of plamamsm In the 1975 edition

of “Rights. Rules and Responsibilities”

there had been an exception under “defens-

es” stating that the absence of intent was

not a defense, and the word “delibegate’

was not included in the basic definition of

plagiarism. In the 1980 edition the “al-

sence of intent” phraseology was deleted

and a new definition of plagamsm was

added

PLAGIARISM The deliberate use of

any outside source without proper ac-

knowledgement. “Outside source” means

any work, published or unpublished. by

any person other than the student. [Em-

phasis supplied]

The second procedural issue related to the

ability of plaintiff to present both fact and

character witnesses in her own behalf. She

had been permitted to cal! any fact witness

but the university had limited character

Witnesses to those from the Princeton Uni-

versity community whose names appeared

in the Centrex directory. The handbook,

433 A26—é

however, provided that “the student has an

opportunity to present his or her case and

any witnesses desired for his or her de

fense” (Emphasis supplied). Plaintiff had

sought but was denied permission to

present character witnesses who no longer

were members of the Princeton community

but were familiar with plaintiff's character

Next, plaintiff claimed that she had not

been told that she had the right to cross-ex-

amine any witnesses who would appear

against her. She claimed that, although

she had been told by an Assistant Dean that

she could present her own case. he neglect-

ed to inform her that she had a nmght of

cross-€xamination, as provided in the stu-

dent handbook

As her last procedura! claim. plaintiff

contended that she had been denied the

right to counse! before the committee

Here, she acknowledgec that the university

followed its own regulations, but asserted

that these were unconstitutional! insofar as

the, limited plaintuff to an advisor (why

ma\ or may not be an attorney) from with-

In the university community. but did not

appearance of outside counse!

of these infractions. she claimec

permit Ne

The resu!:

was an unwarranted determination of gui't

anc an excessive penalty. considering the

nature of the offense. her own record anc

penalties imposed in similar cases

This court remanded the matter to the

Committec on Discipline for a reheamng to

be held during the first week in June. but

retained junmsdiction to review the action of

the committee dumng the same week The

committee was directed to apply the 1980)

definition o” plagiarism. this court noting

specificaliv that the use of the word “delit-

erate,” and the removal of the “absence of

intent” language dictated that the pro

scribed plagiarism must have been with the

intent to pass off the submitted work as the

student’s own. In addition, the committee

was directed to permit plaintiff to call any

witnesses she wished on her own behalf,

subject only to reasonable regulation by the

presiding officer (under rules similar to

Rule 4 of the New Jersey Rules of Evi-

dence ), and that she be afforded the right

to cross-examine any witnesses presented

against her

As to the mght to counsel, this court

reviewed both the federa! and state author-

ities submitted, especially the case of Gar-

row v. Elizabeth Gen’) Hosp & Dispensary,

79 N.J. 549, 566-567, 401 A.2d 533 (1979),

and balanced the several factors governing

the might to counsel. Among these were

the absence of counsel representing the

complainant or university at the hearing.

the university's practice of permitting the

student to select an advisor from within the

Princeton University community, the aca-

demic nature of the matter in dispute and

the probable punishment that could reason-

ably attend a determination of plaintiff's

guilt. In Garrow our Supreme Court per-

mitted a physician to have his attorney

present at a staff affiliation heanng

Princeton, however, is not a quasi-public

institution as was the hospital in Garrow

The mghts of the public to have a particular

physician on a hospital staff. and the sut-

Stantia] potential property rights of the

physician himself. apparent!: tipped the

balance in Garrow in favor of the nght to

counsei The academic hearing in the

present case was of a different nature!

Were the court to enforce a righ: to counse

tv's control over its own affairs would be

unjustifiably limited This court recog-

nizes, however, that there may be academic

areas where the mght to counsel might

properly be mandated. In Rodnguez v. Ro-

senblatt, 58 N.J. 281, 277 A.2d 216 (1971).

counsel] was required even in municipal

court, in cases where an indigent defendant

is faced with an actua! threat or likelihood

on conviction of “impmsonment in fact or

other consequence of magnitude” (at 295,

277 A2d 216). However, given the history

of penalties actually rendered in plagiarism

cases where there had been no “palming

off” of an obscure source as the student's

own work, there was little likelihood that

the hearing would have resulted in plain-

tiffs suffering any forfeiture, i.e, expul-

1. Cf. the practice followed in pnson discipline

cases of allowing another inmate to serve as

advisor to &@ pmsoner appeanng at a discip!-

453 ATLANTIC REPORTER, 2d SERIES

sion, with the resultant loss of her four-vear

investment of time and more). or immed).

ate suspension, with a similar loss of a

semester's time and expenses Whether in

such forfeiture cases a sufficient right

might exist was not before the court, and.

therefore, this court expresses no opinion on

the mght to counse! in academic forfeiture

situations

The committee held its rehearing pursu-

ant to this court's direction and reaffirmed

its original decision to withhold plaintuff's

degree for one vear. Plaintiff's appea! to

President Bowen was similarly unavailing,

and the maiter was returned before this

court for hearing on June 2. 1942

{1} Two issues remain: first. was there

sufficient evidence before the Committee

on Discipline and President Bowen to justi-

fy the findings of plagiarism and. second,

was the penalt\ appropriate” As to the

first issue, 1t Was unnecessary for the court

to decide whether the standarc of review

was to be “some evidence” (see Wood 1

Sinickiand. 420 U.S. 308. 95 SC: 992. 43

L.Ed.2d 214 (1975)). “substantia! evidence”

(see Slaughter \. Brigham Young Un. 514

F.2d 622110 Cir 1975). Sills Pennsvis ania

State Uni... 318 F.Supp 60= 1M D Pa 19701),

affd 462 F.2d 463 (3 Cir. 1972). “sufficient

reliable evidence” (see Garrow. supra 7Y

N.J. at 565. 40] A.2d 533). or “preponder-

ence of the evidence” (general!\ used in

civil trals) Whichever tes: might be usec.

there is no question, from plaintuffs exten-

sive use of unattmbuted materia!. that the

committee was justified in eonc.uding that

she committed the offense tn the inten-

tion to pass off the quoted matena! as her

own. Although the committee might wel!

have found, if it believed plainuffs claim,

that the offense was merely an unintention-

al academic infraction (defined in the hand-

book as one which did not involve fraud),

the evidence was sufficient, when measured

against any of the above quoted standards,

to uphold the decision of the Committee on

mary heanng NJ State Parole Bd \ Woupes

184 N.J Super 533, 535, 446 A.2d 1214 (App

Div.1982)

NAPOLITANO v. PRINCETON UNIV. TRUSTEES

Cme as, 453 A.26 279 (NJ.Supe.Ch 1962)

Discipline. Thus this court, as a court of

review, will apply the doctrine of judicial

abstention and refuses to disturb the find-

ings of the committee

[2] As to the issue of the penalty, a

harder problem is presented. A court may

not substitute its own views for those of a

duly constituted administrative body within

a private institution. It may not act as a

vernmental overseer, except where judi-

cially cognizable issues call for its interven-

tion to protect the mghts of an individual or

the public

(3] Here we have a breach of contract

issue: Whether the assessment of the pen-

alty violates Princeton's agreernent to

award the Bachelor's degree if plaintiff

complied with the university's rules and

regulations. See Claston +. Pnnceton

Univ., 519 F.Supp. 802 (D.NJ.1981) = This

court must determine whether this contrac:

between plaintiff and defendant has beer

breached by the seventy of the penalty

assessed. However. in matters of interpret-

ing and enforcing the contract between the

parties, the university has broac discre-

tion—a discretion to which plainuf! sut-

mitted herself when she enrolled at Prince-

ton. In determining whether there ha:

been a breach of contract, the lega’ stan-

dard against which the cour. must measure

the university's conduct is that of good

faith and fair dealing. for. as noted by our

Supreme Court in Onderdonk \. Presb\teri-

an Homes of N.J.. 85 N.J. 171, 182, 425 A.2d

1057 (1981): “[i}n every contract there is an

implied covenant of good faith and fair

dealing.”

[4] As this court has noted in prior hear-

ings and conferences, Pmnceton might have

2. This observauon is based on the court's de

tailed examunaton. as noted earber. of over 20

disciplinary files. as well as its resrew of a table

of some 78 cases of academuc fraud (main!

plagiansm) and the penalues umposed therefor

at Princeton over the past four years

3 Apart from the infracuo that is the su ject

of this case, plaintiff's record has been spovwess.

both academically and in extra-curncular ar-

eas An athlete, plaintiff had been injured in

her freshman year and therefore could not con-

nue as &@ parucipant in the sports programs

NJ. 233

viewed the matter of the penalty with a

greater measure of humanity and magna-

nimity, with a greater recognition of the

human frailities of students under stress, as

the university apparent'y has done in many

cases in the past? This court cannot man-

date compassion, however, and will not, nor

should not, engraft its own views on Prince-

ton's disciplinary processes, so long as the

standard of good faith and fair dealing has

been met and the contract between the

student and the university has not other-

wise been breached. Accord, Wood ¥

Stnckland, supra, and Higgins v. Amencan

Society of Clinica! Pathologists, 51 N.J. 191,

202. 238 Ad 665 (1968). Private institu-

tions must remain free of inordinate

government—in this case judicial—contro!

Plaintiff has argued that the penalty as-

sessed was excessive in view of three fac-

tors first. her exemplary performance at

Princeton in all spheres of university life,

and the spotiess record she had established

up until and since this single episode ®

second, th: nature of the alleged plamansm

iiself, and her defense of lack of intent.

and thirc. tne history of the past treatment

of students with similar offenses and back-

grounds She points out with particularity

the many cases in which disciplinary proba-

tior hac been given for similar offenses

with students having far worse academic

and disciplinary records than hers, and

notes thai even if the degree were to be

withheld. a four-month withholding period

was mor. usual! than the one-year penalt\

imposed in her case Against these argu-

ments. Princeton urges that withholding

plainuff's degree for one vear is not an

excessive penalty since this was 8 gmevous

She immediately took on responsibilues as

team manager. and in many other areas devot-

ed herself selfiessi, to Princeton, earning rec-

ognituon from students, professors. the athletic

dGepariment and others in the Princeton com-

munity Recommendauons presented to the

Committee on Discipline were filled with super-

latives describing her character. academic

achievements and devotion to Princeton One

professor noted her to be the single finest stu-

dent with whom he had become acquainted

dunng h:s tenure at the university

ae oP

N.J

case of plamarsm, namely, extensive use of

unattmbuted materia! with an intent to de-

ceive. Furthermore, this punishment is less

onerous than that stated as usual (though in

actuality rarely imposed) in the university's

regulations—suspension for one vear or re-

quired withdrawa! from the university. In

addition Princeton points to several prece-

dents for the penalty assessed here, and

urges that there is-no requirement that

punishment be uniform in matters of disci-

pline within 8 pmvate academic institution

Lastly, Pmnceton contends that it is permit-

ted to take such action to uphold its aca-

demic integnty as one of the world’s lead-

ing institutions of higher learning

[5,6] However this court personal!!,

may view the penalty imposed,‘ the proper

roie of a court is to permit pmvate organiza-

tions to govern their own affairs. unless the

court's intrusion is warranted by conduct so

egremous as to constitute a breach of the

parties agreement. To upset Pmnceton'’s

decision here. this court would have to find

that Pmnceton could not in good faith have

assessed the penalties it did

uff. This coum cannot do sc

understanding of the proper

couri—even a court of equits

agains: pla’r-

in view of its

role of @

Judicia! re-

straint is called for. and therefore. this

court wil! not modify the penalt, imposed

by Pmnceton 5

Summary judgment is hereb. granted

dismissing the complaint

4. The court notes that there were alternative

punishments available Diusciplinan probation

was the usua! penalty in most plagiansm cases,

even for seniors. However, if Pnnceton found

plainuffs offense to be paruculariy gnevous

thus menting a greater penalty than dscipli-

nary probauon, the university could have with-

held plaintiffs degree until just after her class

had graduated, thus prevenung her from at-

tending the graduation ceremomes, or untii

September, whuch still would have permitted

her to start graduate school in the fall A)-

though plainuff stil] retains the right to her

Princeton degree, which will be awarded in

June 1983. she has lost a year of academuc life.

453 ATLANTIC REPORTER, 2d SERIES

186 N.J Super 587

Anthony J. BARILE and Sylvia J. Barile,

his wife; George E. Kiima and Valerie

Klima, his wife; and Frank Creveling

and Anne R Creveling, his wife, Plain.

tiffs,

CITY OF PORT REPUBLIC, a municipa!

corporation of Atlantic Count, New

Jersey, Defendant.

Superior Court of New Jersey,

Law Division, Atlantic Counts

couples lands and

buildings which fronted on roads alleged to

be public brought prerogative wnt action,

challenging failure to include such roads on

official map adopted by municipality's gov-

erning bod: The Supemor Court. Law Di-

Atlantic County, Edward S Miller,

JSC. held that (1) adoption of city’s offi-

cia! map Was inoperative with respect to

existing roads and streets in munocipality,

(2) proofs as to two of three roads involved

in htugation feli short of establishing both

dedication and acceptance as public road

and therefore they would be declared pnm-

Vate roads. but (3) third road. which proofs

revealed had been in use probably since

colonia! times and had been penodical!y im-

provec b\ municipality. would be declared

pubiic road, to be shown as such on official

ma}

Married owning

visior.

Judgment according!\

but as noted earlier there 1s no forfeiture of her

invesument in her degree since she was neither

expelled nor suspended

$. Plaintiff had sough: as addiuonal relief an

injuncuon against Pnnceton's giving notice of

its plagiansm adjudication to any law schoo! to

which plaintiff had apphed The notonety de

mving from this case, however, marks plain-

uffs record more permanently than anythung

that defendant might place upon her transcnpt

Therefore. her argument that there should be

no such notification or notauon 1s moot at this

point

136 Mass

383 Mass. 16

Leo J. COVENEY et al.

PRESIDENT & TRUSTEES OF the

COLLEGE OF the HOLY CROSS.

Supreme Judicia! Court of Massachusetts,

Norfolk

Argued Oct. 8, 1982

Decided Jan. 19, 1983

Action was instituted by student

against president and trustees of college for

damages and specific performance by rea-

son of alleged wrongful expulsion. The

Superior Court, Norfolk County, Morse, J..

granted college's motion for summary judg-

ment, and student appealed. The Supreme

Judicia! Court, Hennessey, C.J., held that:

(1) college did not act in bad faith or in an

arbitrary or capricious manner when it de-

termined to expel student given undisputed

fact that student entered the dormitory of

female students without their permission in

clear violation of rules and regulations of

any college, and (2) conduct of student

when, in consideration for a hearing before

president of college with respect to his ex-

pulsion, student agreed to dismiss his action

against college for alleged wrongful expul-

sion and to execute a release holding college

harmless from any liability for future disci-

plinary actions operated as a waiver of al!

claims thereafter asserted by student

against the college

Affirmed

1. Judgment @ 185(2)

A tna] court ruling on a defendant's

motion for summary judgment properly as-

sumes that all of the facts set forth in the

plaintiff's affidavits are true and that any

inferences favorable to the plaintiff should

be drawn.

2. Judgment @ 185(4)

Any facts agreed to or established by a

plaintiff in a deposition may be considered

by the trial court on a defendant's motion

for summary judgment in determining

445 NORTH EASTERN REPORTER, 24 SERIES

whether a genuine triable issue of material

fact exists.

3. Colleges and Universities e=9

A private university, college, or school

may not arbitrarily or capnciously dismiss a

student.

4. Colleges and Universities e=9

If officials of a college or university act

in good faith and on reasonable grounds,

their decision to suspend or expel a student

will not be subject to a successfu! challenge

in the courts.

5. CoDeges and Universities e9

Violations of reasonable rules and reg-

ulations of a college or university are a

recognized ground for dismissa! of a stu-

dent

6. Colleges and Universities 9

College did not act in bad faith or in an

arbitrary or capncious manner when it de

termined to expe] student, rules and regu-

lations of college published in student hand-

book, a copy of which was received by stu-

dent, were clearly breached when student

entered the dormitory room of female stu-

dents without their permission and there-

after held door to bar the entry of female

students who were the mghtful occupants

of that room, and college provided student

with two hearings and with opportunity to

make statement

7. Colleges and Universities 9

A college must ha\e broad discretion in

determining appropnate sanctions for viola-

tuons of its policies

8. Colleges and Universities 9

Mere comparisons between punish-

ments imposed by a university or college on

students are immateria) to issue whether a

particular punishment imposed on particu-

lar student is arbitrary or capricious.

9. Release e= 30

Conduct of student when, in considera-

tion for a bearing before president of col-

lege with respect to his expulsion, student

agreed to dismiss his action against college

for alleged wrongfu! expulsion and to exe

COVENEY v. PRES. & TRUS. OF HOLY CROSS COL. Mass 437

Cite as. 445 N.E.26 134 (Mass 1983)

cute a release holding college harmless from

any liability for future disciplinary actions

operated as a waiver of al] claims thereaft-

er asserted by student against the college

10. Colleges and Universities 9

Where college was a private institution,

student had no constitutional nght to hear-

ing with respect to expulsion USCA

Const.Amend. 14

11. Colleges and Universities 9

Student expelled from private college

did not have a contractua! mght to a hear-

ing with respect to that expulsion based on

a provision contained in student handbook

that was in effect when he matriculated in

college. where provision in effect at time of

incident which led to student's expulsion

was clear that there was no mgh: to a

hearing before expulsion from college

12. Colleges and Universities 9

A college is clearly entitled to modif

its rules and regulations so as Ww proper!\

exercise its educationa! responsibilit\

13. Colleges and Universities 9

Student had no constitutional mght to

have an attorney present at a heanng with

respect to his expulsion from pmvate col-

lege. and since presence of an attorne\ was

not a condition of release signed by student

adequacy of hearing afforded by private

college could not be challenged on ground

that there was no attorney present

14. Colleges and Universities 9

Hearing afforded student by private

coliege with respect to his expulssxon was

not invalid on ground that preside

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