# Opposition Brief — New Orleans Baptist Theological Seminary v. Babcock > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1718%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1990 - **Citation:** 498 U.S. 880 ## Text A Ne an aeeneere : n Supreme Court, U.S. (Pyhersi er, FILED | oe , \ ci ST OY JUL 19 1990 JOSEPH F. SPANIOL, JR. CLERK SDDMLE AAR AS AKere NIT TMoTN emamnec . : CARIC SAaDpmTecn Vrew MRUBsUNO DAF itawod MIT AT AT RAT COMTMADY C 4 AL SEMINARY, Der,+¢ 4 + rma Y JER ‘s = 4 Kwa T ¥ n - + “ ~ a A —— Ge Ge & S Te x 5c Manarvince Crrec S24y4aQca.110 — } » ? rieane 7 ‘ ad 44vC Gis 224G - — a —- - a ee ais . - - - * s , / 2 ~ U + 3 Reenrne c + > QD = In = a th = MUU 2} R \ Rescr 3 - ~ bs ’ = s — ITT CS “oat hieeh so iN NEW ose TH EOT BVUUVS. S'IPREME, ORLEANS AACTCAT we ned rn = NTInT () LIX h OF THE UNITED 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 = i. 1 a oe ale Tahelaal ed s 7. acai — ban —, Y ‘ Va + no ‘ ACS equired NOBTS O include a due process T aT ome > . — % a weal - , - Bt ' " ; : , > —~)) rf - ararkny -~ KA Cre ont an \Y 77 1 - ~ 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 ae) op) Q 2 O O t+ rh | O 3 Qa iS “” 3 be 9) 02) - Ye) 198) Q O '?) ~ rh H O j mNroahinist a + prohibited the School; and tH ) 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 - > - r, A v c ~~ + on bp + f . a / Wrvs AA — >+ a an — > ch rh dL +} et 1S (See rd aid ak Y = ae $ ’ bie . L Snouid 7 } 5 D- : a ’ ma tmeep 6 hy Yehoasi'tc Det dn ~ _ Wri 4 y — eS L ues sLLIS B. MUROV [Bar # 98 DEUTSCH, KERRIGAN & STIL 755 Magazine Street New O.:leans, LA 70 — : , a Telephone: (504) 581-5141 Attorneys For Rudolph G. Babcock SERVICE CERTIFICATE OF c wv a, co G raiq@ "> «t rw) rt “ @) a7 Hy QV TW c @ oOo = _ 2) Cc © WO re ennessee aville, T Na ON \ > MUROV ELLIS B. ee eeGVs_—K_-®m|:r.®¢.v ee 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. > 4 Defendant, New Orleans Baptist Theological Seminary ("School"), is an educational institution located in Orleans Parish. BACKGROUND 3. | 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 -| 4. In August 1985, Plaintiff entered the School to pur- sue a Masters of Divinity degree in marriage and family coun- | seling. | 5. 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. 6. 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 | Ve 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. 8. 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; (c) Petitioner could not continue in his degree p 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.® 9. 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 =3- | 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 o 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 4 School is both appropriate and necessary. *~0 0 ’ ' 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- - -~ » a — ; + o"’u ° guiring the School to allow Plaintifé ister on August 20 and/or 21, 1987 and with be s QO ’ 7° > nefit of the Grant and campus facilities fo o ty o >» I rh " wo ~ j , ’ i» - = ve proceedings be h 5 ent injunce ‘ a} a | ‘i. | > } >| Co ® ® O Ou et | from dismissing unds of separation and h Petitioner's ¢ IO wan "4 jy Os wn rn’O e- w+ Oe ¢, a | Le | Oe »-" - a ow rt - a oO oO 7 , ] ev &@ wre xf th t 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, a SNOUNOTIVE RELIEF AND SPECIFIC PERFORMANCE re tsts eres Rusossen G pa>cock tnrese> neess-gnes Ccounse., with respec: resresents: ll alii all aa 1. wr > 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 == 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 w a 4 OQ 0] ~ » w uw o q " @ . vw ral Mo @ a 0 0 et " , ’ @ 2) hs " a w , t om J 0 iv a? bh h a ‘ ' 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 § tw 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. (c) After due proceedings be had, all costs ané 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 5 49 “* ~ . . . . . . . . . > . 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 Of 29 29 Ww tw 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 ' tO ' 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 net a NOB neornncan = "oO mrneHeary rRORe a aAr wt ary o~4 i uUncTION, NOBTS interposed 2a peremptory exception OL s4atKH Ls é ~~ 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). Vs m ) Tne School's officers in clude a Academic Affairs, Vice-President for Business of Development, a Director of >) ' ba ta ba oe) — Cc) J, on both federal and state governments in pursul Admissions Vice-President Affairs, + and a 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-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 F } Marercer Chiirerh? = 7 Aai€¢ 5 } ; 7 £ of the Baptist Church? Stated differently, absent involvement of (Uv @ ~ 2) m 2] wn - . U. S. Department of Education as follows: 7 \ ‘a = Sass 5 . ae _ 1 Certifying that an institution has met establishec Standards + : ~ _ - 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 - 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 ul ' 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 J ) 1 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 te 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 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 9 Ci S ort of i Supp GS 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. a -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 fu i" churches and concluded that the Southern Baptist Convention w also held that since messengers there hac D 0 O Ps ai ct 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 be 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 . 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. y 4 Ciplinary\ — Vv) ha because brea o . _ at Amendme Y + ratec sepa Babcock was YU ‘f) () J i 8] e€ wauKkKe + i> + M 5 = + “Dr i - Ps . ewspa —_ aa (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 ~o - Das _ = sacc oo ' * . a a — ~ Accensum. Accorc:ns to Appeilant's counsel, someone decidec tc = - 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 ' iw Ww ' 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, v. Ottie David VANCE, Appellee. Ottie David VANCE, Cross-Appellant, v. 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- e 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, v 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 a 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 no 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- i 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 the purpose of such a meeting is simply © 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 f 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, v. 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. y 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 [3 bs M@, William Ronald Branch bods Charles Ernest Pharic** fae Leroy J. Brewer ucius B. Pooser** ll. Curtis Alan Bridges ~ Darrell Roland Brown James Harold Reid eee Richard Timothy Brown Stephen David Richardson fAMSZ David George Burzynski John T. Risher 38~~i\o* esc ae” y Brenda Benfield Caldwell** aae Karl Wayne Roberts 7iCherles Edward Castles- Donald Alan Seagle bee gonathar McCord Raiiais Mc {486 James Edward Shafto 4+: PR4 David Franklin Daugherty** Zz. Jerry L. Smith (25 Brian Eerl Davis - Joey Edward Smith (026.,-Ron Dincgus 21h 34~ Philip Sanders Smith ‘0423> L. Daniel Dix fe “Anthony Lee Snyder 28; Marvin Eugene Douglass 5+~ Joseph Stewart Sorath: fq42S> Lauralee Grace Stapp Estes** . David Brandon Spiers Se a 243 -(7z) fAge- Mark ‘D. Stagg ; fark R. Foley 3 (P37 Craic Eucene Forque hes. Patricia Corr Taylor }erro 3%. y Ernest Gipson W ae John David Gordon® psi 3 Jeffrey Claude Griffis** William Michael Gwinn 037. Michael Dean Hagen e-38. Billy Gene Hardin** fO9> James Arnold Harrison Larr ‘ piger Tim Tolleson Fy Timothy Clark Tomlinson Timothy C. VanLandinghan - Voyles, Jeffrey Loyal** 4i-—Michael Gene Waldrip ’ 5éBart Matthew Walker 2?’ 6. NGerald Herrin Walker 92. 254 747 \40. Dennis Wayne Bawkins*®® 222-- Charles Phillip Herring - Teddy Glen Wilson a ae Esmond Wentworth Hilton** ~\l01. Murray Ross Wilton** (245 Larry Rogers ¢ASI. William Jeffrey Rose 32+’ Henry Leon Schill PAYS. =Kennith G. Sterlin ~ James Richard Stew - Mark A. Ward PY 36— Melvin Joseph Yorks** PAZ? ~=Gloria Lynne Youngblood o zk. 7° @m De eT EEEEeeEeEeEEeEeEEeeeeEEe—eeeeeaeaeaeaeaeEee__ ee eee ee - APPLICANTS FOR GRADUATION May 20, 1989 DOCTOR OF MINISTRY heger ry Boyd, Jr. Gerald Walker Haley fA@onald Glen Payne b Stgees Milton Peak Oy vid Raddin, Jr. as Ate ri Yt on ae _—_ ce. /4€arol A. Evans Mark F. Grahar Gregory James Wal kup (Raxiu, .) Michael S. Young DOCTOR OF THEOLOGY Tommy Joe Bo Kathleen McG @®avid Hugh § | George Trama 1,~Bdgar Lee Wrigh New O. 2ans Baptist Theole ical Seminary 3939 Gentilly Boulevard « New Orleans, Louisiana 70126-4858 « (504, 282-4455 a Pubiic Relations March 27, 1989 Dear Graduate: Congratulations! The Office of Public Relations has been notified that you are a candidate for May graduation. We wish to inform your family and friends that you have earned your degree from New Orleans Baptist Theological Seminary. [In order that we may release this news to appropriate media, we as that you fill out the enclosed form and return it to the Office of Public Relations no later than Friday, April 21, 1989. Please do not overlook this important step in the graduaticn process. If there is a problem in returning the news release form by April 21, please give us a call at 286-3603. If this office can be of any further assistance to you, now or in the future, please do not hesitate to call on us. Sincerely, EHO. SX WT) oe \ Et Ellen Smith Assistant Office Manager Office of Public Relations Jpyt~ Ca 7 SLL LIS s~ —- se oe? S$ _ i \ A a ’ al ‘ a hin , ~¢ Ago So fe ee 7 : il HK : ' che s s 7 Pg 7 ue o 2 » ie as 7 MOF SorEK en a . | 3 J ae are, _jncce’® gat tee ¢ YE +e 4A die > ee 4 * ’ A Gateway Opened By Providence And Prayer GRADUATION NEWS RELEASE INFORMATION (Please print) Return to Public Relations Office by Friday, April 21. Name Graduation Date Current Address __ Address After Graduation (if known and different) Hometown, State Degree To Be Awarded Spouse's Name (include wife's maiden name) _ Spouse's Hometown Your Parents’ Names Parents’ Address Your Home Church, City, State Present Ministry Position (if applicable), Church, City, State Educational Background (college leve! degrees) Degree Schoo! City: State Year: Decree: Schoo!: City os Sete: Yea ee en Degree Schoo! City: Suate: Year: 7 Newspapers to which news releases should be sent (inciude city): Home state Baptist paper: Hometown newspaper: One other newspaper: (If the reason for sending a release to 8 particular paper is not evident from above information, piease state the connection below.) New Orleans Baptist Theoiugical Seminary Office of the e Preside Executive V) $ ti su 2) ba 44 4 { 7) O f: wm Mw) 4 Cc WwW r4 ba x wv vu VW ¥ CC 7 v 4 oe 4 Ac _ . ti OO ba c wy rt wt W~ 7 Oo 4 ba | , Oo ba “We AA] Gc WwW ‘A ord H ve &- ~ Cc ww ri oO 3 Vv oOo w f v7) J be ) ) Cc © et ) ww Ss «4 O «4 uOow vu ba be oOo Vv + ‘ea ¥ O ” yo Ww D> bh o = ye Oo we iJ vy ha { ‘ re) ) vo w VU Ww re’ eo wv b O an © 2) Yy ow Yu G ) 4 be 48 (~ © 1s ub «0 Gc p? 4 ws be Se = YU Oo Oo Py > G be ot U aA G&G > bw ob 3 yo ww ba ww oo VW) co 4B 3 @) y) “4 ] bw 6) o) +4 ort J ” 0 ww 2D A oO ri rt be O wb a Ww ec Oo oO a. w& o 8 VY ri - + ‘> mr Wun mo Wwe ve y oO aa On transitic ially Cord Executive :rkw DHS New \ ‘leans Baptist Theo gical Seminary 3939 Gentilly Boulevard ¢ New Orleans, Louisiana 70126-4858 © (504) 282.4455 ‘ Ps - ‘ . Fs A Sin } — ad of rs : ee, \ Tr 11 Me") « r = — Ta | \ V\ ee ey ’ A Cat Opened By Pr nce And Praver 3939 Gentilly Boulevord *« New Orleans Louisiono 70126-4858 «+ (504) 282-6455 tall New Jrleans Baptist The logical Seminary April 21, 1989 Dear Graduate: We wish to commend you for your accomplishments during the time that you have been enrolled with us and would like to make a few suggestions to you in order that the graduation exercises on May 20, 1989, may be carried out as smoothly as possible. Graduation has been planned for 10:00 a.m., Saturday, May 20, 1989, in the Roland Q. Leavell Chapel on the seminary campus. Please meet with the staff of the Registry Office at 2:30 p.m., Friday, May 19, 1989, in the Leavell Chapel for rehearsal. Your You will need to notify me or Miss Kathryn Barper, Registry Office, Hardin Student Center, immediately if your plans for péerticipation ir the graduation ceremonies have been chanced. Unless we hear from you to the contrary, we will count on you tc be present for the rehearsal and graduation exercises. Doctoral candidates should bring their doctoral hoods to the rehearsal where instructions will be given with reference to proper placement of the hoods for the graduation exercises. The Public Relations Office has requested that all doctoral candidates be prepared for individual pictures immediately following the rehearsal on Friday afternoon. Coats and ties for the men are j - Group pictures of the doctoral candidates by respective home states will be taken in front of Sellers Building at 9:30 a.m., Saturday, May 20, 1989. All graduating seniors should have already completed and returned the Graduate News Release Information form mailed earlier. If you have not, please do so immediately. Child care facilities will be available at the Preschool Education Center for children three years of age and under (thi also includes chiidren of our out-of-town guests). The Center will be open at 9:00 a.m., Saturday, May 20, 1989, for your convenience. It will be necessary for you to pick up your children not more than 15 minutes after the graduation exercises are over. PLEASE OBSERVE THAT YOU WILL NEED TO CONTACT MISS GRACE GRAHAM, DIRECTOR OF THE PRESCHOOL CENTER IF YOU PLAN TO USE TEIS SERVICE ON GRADUATION DAY. Thank you for your cooperation with us during the time you heve been a student at the seminary. We are counting on your continued interest in our beloved School of Providence and Prayer. cr? yr mn" Sincerely yours, , yr /. WALT uh Bert C. Neal Director of Admissions and Registrar BCN/kh A Cateway Opened By Prowidence And Prayer Gel il P™ DHIMIT- "PU Da) x may | re prmermae Kypruogs 666 y ¥ 4 4 A , ¥ o- ) a 7 LA fi ’ Apt / DAAAU4KKi4 SP CUS QV in cS VA-CL 4 _ 5 4 rei C/ LA ate) + ? - alias AY AAV Paige eas P - 2 / » ey / Es Geum CLM C4 rr a dead a » I, te fl LEAP Lap lhl Shact Yica¢ cme ra Py May i ¥ Li i ¥ ¢ ¥ VOLS MLL Le > 4 MAZEL 44 Aen 7 v ta ” he / 44 aL A PUD PML IT e (7307 aL OD ME TF f/f a ee ae hi ti-ritig Chi TRACE Ff Re Graduating \emetéiene Runa reda GAA eghty nin SECC HL igh iw a CRC M LEY 44 ¥ 4 CPF « es | t m4 ~ ¢ / , . 4 Y ¢ g 4 ater (ah (42 . 7 d ~ P " ~ Z gy . € , Jf , th Za Y $lay 46-46 FO4 44 4 wed % RAPT PE az gh? z ‘ nv RG ¢ Zé 7-77 Cx CA. 7) > 4 i (#1 ?, a r a Loe ae, h/afete hei lGtclat WtILQ P y | » > Oe MCA and “% May agAics OLLZEZT ORUOHA PUOWY HY @NU@AYy jJU@WNUOW DORE «+ 1919 08 Ou UONUBAUO’) jS}JAOG WIEYINOS By; jO | DIDOGUOISSI|, UBId104 ~ ‘uOnKeNprss INOA UO -* “SUOTILINIVISUOD gn ission Board ptist CONVENTIO’ Forel M™ Bo of the Soutnerr 96 bos oe" + @enmone ¥ We at the Foreign Mission Board extend to you Our warmest wishes as you begin a new chapter in your service to God. We encourage you to keep foreign missions an integral part of your Christian ministry. Please call on us as you need foreign missions resources. LAW OFFICES . MORGAN BRIAN, JR A PROFESSIONAL LAW COKPUOKATION 700 CAMP STREET -W ORLEANS, LOUISIANA 70130 GY f Ellis B. Murov, Esq. Deutsch, Kerrigan & Stiles 755 Magazine Street New Orleans, LA 70130 BY HAND LAW OFFICES A. MORGAN BRIAN, JR. A PROFESSIONAL LAW CORPORATION 700 CAMP STREET NEW ORLEANS, LOUISIANA 7013 £04) 69 e (504) 528-950 May 9, 1989 BY HAND Ellis B. Murov, Esq. Deutsch, Kerrigan & Stiles 755 Magazine Street New Orleans, Louisiana 7013( Re: Babcock - NOBTS Your file: 03325-0! Our ref: 477-00] Dear Ellis: This is to advise you that New Orleans Baptist Theological Seminary will not grant to Mr. Babcock 4 degree at the commencement scheduled for May 20. AMB:ijf ec: Mr. Rudolph G. Babcock - BY HAND James P. Guenther, Esq. Richard T. Simmons, Esq. Dr. Don H. Stewart Dr. Landrum P. Leavell, II Dr. Bart C. Neal DEUTSCH, KERRIGAN & STILES (& PART a EeSH > im ue PROFERS Ons. 48 COREDAATIONS 75S MAGAZINE STREET Sv Tammany Orrice ELLIS B MUROV NEW ORLEANS 70130-3672 OP puiOtse a 70688 100 TELEPHONE BOS) BO'-814 Oe ee ‘LImNG Po BOx B20 _CaB.e acorcss DEKEST S.'DE.i. La 70089-0220 TEL Cx 804356 TEL ECOPY- $54/866-'120 May 10, 1989 BY HAND A. Morgan Brian, Jr. 700 Camp Street New Orleans, Louisiana 70130 Re: Rudolph G. Babcock v. New Orleans Baptist Theological Seminary ur File: 03325-001 Your File: 477-001 We are in receipt of your letter dated May 9, 19689 which states that New Orleans Baptist Theological Seminary will abcock his degree. Confirming our discussion of not grant Rudy B May 9, the action was taken because Babcock would not have earnec his degree if he had been expelled in August of 1988 and the degree will be withhelc if the Fourth Circuit reverses. Babcock does not accept the validity of the above anc is entitled to graduate as he has earned his degree. Very truly yours, Cloiy B we EBM/11 STATE OF LOUISIANA COURT OF APPEAL FOURTH CIRCUIT RUDOLPH G. BABCOCK 7 > “nr 7 Plaintiff-Appellee 2) T 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-4 TABLE OF CONTENTS PAGES pe GR Ge yy cy a a a a a ae a a a a a a i ee spk goa eS ae se se et et ele lke el helm 1 ISSUES TO BE RESOLVED BY THIS COURT ......-. «2 «© « » 4 Gumeaee Bankceeeees OF PACTS . «© = ss ese eves eeveeve se 6 Dn os 4s 6 «© 6 «@ 6 6 6 @ ee we ee ee hl !hlUlhlU eh 10 A. The Louisiana Civil Courts Have The Jurisdictional Power to Entertain memeeegs 8 POCEESON. « 6 ts ts tee teh hh hl hl Ul 10 B Introduction To The Second Case Of amae COMBGLLGEtOG APPEAL .« st ttl th hl hl ll 10 Le The reasons for this case and this appeal ey Se ae ee oe a a a ee 10 ri Metamorphosis via characterization... . 11 ss Characterizations are not dispositive. . . 12 Cc NOBTS Is Prohibited By The Doctrine Of Res Judicata From Putting At Issue Again The Merits Of Babcock's Attempted Dismissal. .-. 6 13 D Assuming Arguendo That The Doctrine of Res Judicata Does Not Dispose Of Babcock's Entitlement To His Degree, Then the Refusal To Award It was Arbitrary. 15 Ae NOBTS concedes that courts may compel the award of degrees which were arbitrarily WAGHOOAR 2 0 ts te te oe ee ee ew He 15 a. NOBTS' refusal to award Babcock his degree was arbitrary, Capricious and unreasonable . ecw e ee & & 8S 6 16 E. NOBTS Cannot Assert The Lack of Exhaustion of Administrative Remedies For the First Time On Os ee ee ee ee ee ee ee ee 17 cj —. 4 4 © Y cS i) © . fi.) Q row . . Ww - ° co @ , a . rt . . 4 W m . = . 4 A . oO . . eS) . 4 . . & Kz o O O . E4 . . f . 4 @) . = id i ue) ° = VU) af ov 4) rf ra ° 4 e var dd ms —_e . _— i O ms O . ba] v» Q : O Ww . W) Zz, Mm t4 ° te , ae an . O mM O ° YY) . UO Hi W) i * mw . ca + O W oO oe Zz, th. a te rt . VY) es — = O O = ~~ b Y nsent judgment on the merits has the authority of a thing adjudged and may not be re-litigated. Cheramie v. Vegas, 468 So. 2d 810 (La. App. lst Cir. 1985), writ denied, 470 So. 2d 122 (La. 1985) and Greenwood v. New Orleans, 12 La. Ann. 426 (La. 1857). See also La. Civ. ~~ = " ae nem .* GR . cr aii a a we tip Gsiy ~ — ~- ane 5A . & ae . > ne Ry ne Q ~ — a Inc v Sewell Inc., 41 sc 2 il2, 4d (La APE 2c *AOoO* ~_ = rs ’ ~ 5 a rm, y 2) RAR REA . — — N t — r & r) - oe © saved 4NnOMpsod \ bank Of Cw Urieans 4rust se ne a in ~~ — . —., me 59027 ATA af A > — , y Q 2 ~-OMpAaNny, 4 ot + —~ wrt 7 =) Cc miko yr myAnK ) ey & &£ w UTLDE &® SUPPLY, 4356 sc . ‘ m . . am 6 3 ~r 2A . eRe — ~ + = a ss mm = a iN or = 4 WV Lal a a. a7 > , cert oe aC 3G ea - USL sage > mt} ° a - eo} S ~ ae > * * ~ OF = + - We Se aS eS Pe + 1e ogical e aii + Y ¥ va o4 — “27% ~ w 24 11 (Ky. App. 1979); Tedeschi v. Wagner College, 4: - w £ ue) 4 @) rw ‘er =) yA , When the cause was to be heard for the issuance of a permanent injunction, the School interposed an exception of lack of jurisdiction, claiming state interference in church matters. 10. On December 21, 1987, the hearing on the exception was held 11 On March 18, 1988, the exception was dismissed. (Exhibit 2) 12. On May 31, 1988, the parties agreed tc a consent "final judgment,” whereby the School, reserving its right to appeal the jurisdictional issue, agreed to a permanent injunction prohibiting Babcock's dismissal "based upon any of his conduct or activities occurring on or before August 19, 1987... ." and reinstated his scholarship. (Exhibit 3). 1/ Unless otherwise indicated, exhibit references are to exhibits attached to Babcock's Petition for Temporary Restraining Order, Injunctive Relief and Specific Performance filed on May 12, 1989. o Fu 13. The School appealed only the denial of the Exception devolutively. (Exhibit 4). 14. Babcock continued his studies, completed all requirements, and received letters, notices and verifications of the imminency of his graduation from the public relations office, the executive vice president, the director of housing, the registrar, the president, and the Southern Baptist Foreign Mission Board. (Exhibit 5 in globo). 15. On May 9, 1989, the day before Babcock's Brief was due in the first case of this consolidated appeal, counsel for Babcock received a two-line letter notifying counsel that the School refuses to award Babcock's degree at commencement, May 20, 1989 because if he had been expelled in August of 1987, he would not have earned his degree, and be on the May 20, 1989 graduation list. (Exhibits 6 and 7). See also Affidavit of Joe Cothen at paragraph 5. 16. Upon Babcock's request for injunctive relief presented filed on May 12, 1989, Judge Robin Giarruso granted a temporary restraining order requiring the School to award Babcock his degree. os On May 17, 1989, Judge Katz granted a preliminary injunction requiring the School to award the degree during the May 20 graduation ceremonies, and denying NOBTS' Motion to Dissolve the Temporary Restraining Order. ee ee 18. NOBTS took an emergency supervisory writ to this court, which agreed to stay the preliminary injunction as to the award of the degree to Babcock, but required that Babcock be allowed to participate fully in the graduation ceremonies on May 20, 1989. ARGUMENT A. The Louisiana Civil Courts Have The Jurisdictional Power to Entertain Babcock's Petition. Babcock incorporates by reference his statements, arguments and authorities presented in his Brief in No. 89- 0233. Babcock additionally submits the following: Appellee cannot comprehend why NOBTS insists on citing E.E.0O.C. v. Southwestern Baptist Theological Seminary, 651 F.2d 277 (5th Cir. 1981), when it is an employment case and this isn't and when its holding, assuming applicability, Supports Babcock herein. The only issue upon which defendant therein prevailed was the statutory one and then only for purposes of the faculty. As to students such as Babcock, defendant therein lost on both statutory and constitutional / Ito grounds. B. Introduction To The Second Case Of This Consolidated Appeal Be The reasons for this case and this appeal per NOBTS 2/ As set forth in the original Brief, the action involved Title VII of the Civil Rights Act of 1964 which prohibits discrimination on the basis of race, sex, color, national origin and religion. Thus, assuming arguendo that the EEOC had sought to enforce a subpoena on a race, sex or national origin charge, the defendant would have lost on all grounds as the only reason it prevailed on the statutory ground for faculty was a specific and narrow exemption in the statute. See 42 U.S.C. § 2000 e-l. -10- ccording to NOBTS, it withheld Babcock's degree for two reasons. First, the School was "concerned that its pending First Appeal would become moot if he graduated." Appellant Brief at p. 4. Second, the School "still regard[ed) him as ministerially unfit." Appellant Brief at p. 4. Be Metamorphosis via characterization In August 1987, NOBTS attempted to expel Babcock based upon provisions in its disciplinary code against separation and divorce. Because Babcock was neither separated nor divorced, he challenged his expulsion and prevailed. That is, based upon a motion to enter consent judgment, Judge Katz enjoined NOBTS from expelling Babcock for conduct occurring on Or before August 18, 1987. NOBTS chose not to appeal this judgment other than on jurisdictional grounds. On appeal and in its Brief in No. 89-0233, NOBTS characterized its decision to expel as an academic one and also as one based upon moral unfitness. Why? Simple. NOBTS had no evidence whatsoever of a separation or divorce and had even conceded its attempted discipline was unfounded, unwarranted and illegal by entering into a consent judgment which it did not appeal except on jurisdictional grounds. -ll- In its Brief herein, NOBTS has now recharacterized Babcock's August 1987 conduct as "marital irregularities."2/ See Appellant Brief at p.14. Then, despite conceding that Babcock "“Satisfactorily finished all the courses required for the M-Div. degree "(Appellant Brief at p. 4), NOBTS withheld the degree for reasons set forth in subparagraph 1 above. a Characterizations are not dispositive. Characterizations are not dispositive. Commissioner v. Culbertson, 337 U.S. 733 (1949); Nash v. Currette, 215 La. 109, 39 So. 2d 840 (1949); and Due v. Due, 342 So. 2d 161 (La. 1977). NOBTS has cited no evidence of any conduct on Babcock's part in this consolidated appeal other than conduct occurring prior to August 18, 1987. The School first characterized it as a [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1718%3A2. Public record. Not legal advice.