                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 5, 2017                   522691
________________________________

In the Matter of KATHY A.
   DOPP,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

STATE UNIVERSITY OF NEW YORK,
                    Respondent.
________________________________


Calendar Date:   November 22, 2016

Before:   Garry, J.P., Egan Jr., Rose, Clark and Mulvey, JJ.

                             __________


      Cooper Erving & Savage LLP, Albany (Brett D. French of
counsel), for appellant.

      Eric T. Schneiderman, Attorney General, Albany (Frederick
A. Brodie of counsel), for respondent.

                             __________


Clark, J.

      Appeal from a judgment of the Supreme Court (DeBow, J.),
entered September 1, 2015 in Albany County, which, among other
things, dismissed petitioner's application, in a proceeding
pursuant to CPLR article 78, to review a determination of the
State University of New York at Albany expelling petitioner from
its program.

      In the fall of 2009, petitioner entered the political
science Ph.D. program at the Nelson A. Rockefeller College of
Public Affairs and Policy at the State University of New York at
Albany (hereinafter the University). In April 2011, following
repeated conflicts with faculty members, petitioner was formally
referred for disciplinary action based upon her alleged
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violations of the Student Code of Conduct. After a hearing, the
Student Conduct Board (hereinafter the Board) found that
petitioner violated certain prohibitions in the Student Code of
Conduct, including incidents of harassing behavior directed
toward at least two faculty members, and imposed a year-long
disciplinary suspension.1 The Board further stated that, if
petitioner was readmitted to the University and the political
science doctoral program, she would be placed on disciplinary
probation through graduation and would be required to "meet with
appropriate faculty to develop a written agreement with clear
behavior expectations."

      On July 3, 2012, following petitioner's completion of her
disciplinary suspension, the Chair of the Political Science
Department informed petitioner that departmental faculty had met
to discuss her progress in the doctoral program, as they did for
each doctoral candidate every spring,2 and that the faculty had
several concerns about her progress and were, therefore,
requesting that she voluntarily withdraw from the program.
Petitioner refused, and the Chair formally requested petitioner's
dismissal from the Ph.D. program, citing petitioner's inability
to respond appropriately to constructive criticism and form
examination and dissertation committees and her unwillingness to
complete the program as it was configured. The Vice Provost for
Graduate Education thereafter indicated to petitioner that he
would deny the dismissal request if petitioner could provide
certain assurances relating to her return to the program, and, on
August 29, 2012, petitioner and the Vice Provost signed a
performance improvement plan (hereinafter PIP). The PIP stated
that the faculty had five areas of concern regarding petitioner's
ability to successfully complete the Ph.D. program and recited
certain expectations that petitioner was required to meet in
order to continue in the program, including that she complete the


     1
        The Board's determination was subsequently upheld on
administrative appeal.
     2
        The Political Science Department did not discuss
petitioner's academic progress in the spring of 2011 given that
her disciplinary proceeding was ongoing.
                              -3-                522691

required year-long research and writing seminar, adapt her
scholarly interests to fit the interests and expertise of program
faculty, form a dissertation committee in accordance with
University policy and comport herself in a nondisruptive and
professional manner in the classroom and in her interactions with
faculty and students. The PIP expressly stated that petitioner's
failure to adhere to these expectations would result in a
recommendation that she be dismissed from the program.

      Petitioner returned to the political science Ph.D. program
in the fall of 2012. Following an incident in one of
petitioner's classes on February 6, 2013, the Chair of the
Political Science Department again recommended, on behalf of the
departmental faculty, that petitioner be dismissed from the
doctoral program on the basis that she had violated certain
expectations set by the PIP. The Vice Provost for Graduate
Education contacted petitioner and indicated that there was
sufficient cause to act on the Political Science Department's
request and move toward dismissal based upon her failure to
comply with the PIP. Petitioner refused to voluntarily withdraw
from the doctoral program with a Master's degree in political
science, as recommended by the Vice Provost, and she was
thereafter expelled from the program. The University's Graduate
Academic Council denied petitioner's subsequent request for
reinstatement.

      Petitioner then commenced this CPLR article 78 proceeding
seeking, among other things, reinstatement to the University's
political science Ph.D. program as a student in good standing.
Following joinder of issue, Supreme Court dismissed the petition
on the merits. Petitioner now appeals, and we affirm.

      As an initial matter, petitioner argues that Supreme Court
erred in dismissing her petition without first conducting a
hearing. While a trial court may hold a hearing to resolve
issues raised in a CPLR article 78 proceeding "when confronted
with a situation where it is impossible to determine the matter
upon the submitted papers alone" (Matter of Ames v Johnston, 169
AD2d 84, 85 [1991]; see CPLR 7804 [h]), Supreme Court was not
presented with such a situation here, as the parties did not
disagree as to the underlying salient facts and circumstances
                              -4-                522691

leading up to petitioner's dismissal, but rather differed in
their interpretations of those facts and circumstances.
Accordingly, because the matter could be determined summarily, no
hearing was required (see Matter of Dugan v Liggan, 121 AD3d
1471, 1472 [2014]; Matter of Conte v Town of Norfolk Zoning Bd.
of Appeals, 261 AD2d 734, 737 [1999]).

      As to the merits, sound public policy considerations have
long "militate[d] against the intervention of courts in
controversies relating to an educational institution's judgment
of a student's academic performance" (Matter of Susan M. v New
York Law School, 76 NY2d 241, 245 [1990]; see Matter of Olsson v
Board of Higher Educ. of City of N.Y., 49 NY2d 408, 413 [1980];
Tedeschi v Wagner Coll., 49 NY2d 652, 658 [1980]). "When an
educational institution issues a diploma to one of its students,
it is, in effect, certifying to society that the student
possesses all of the knowledge and skills that are required by
his [or her] chosen discipline. In order for society to be able
to have complete confidence in the credentials dispensed by
academic institutions, . . . it is essential that the decisions
surrounding the issuance of these credentials be left to the
sound judgment of the professional educators who monitor the
progress of their students on a regular basis" (Matter of Olsson
v Board of Higher Educ. of City of N.Y., 49 NY2d at 413; see
Matter of Susan M. v New York Law School, 76 NY2d at 245-246;
Tedeschi v Wagner Coll., 49 NY2d at 658; see generally Maas v
Cornell Univ., 94 NY2d 87, 92 [1999]). While courts are
reluctant to intervene in an educational institution's assessment
of a student's academic progress, academic determinations are not
entirely immune to judicial review; our review, however, is
limited to whether an institution's academic determination was
arbitrary and capricious, irrational, made in bad faith or
contrary to Constitution or statute (see Matter of Susan M. v New
York Law School, 76 NY2d at 246; Matter of Chusid v Albany Med.
Coll. of Union Univ., 157 AD2d 1019, 1020 [1990], lv denied 75
NY2d 711 [1990]). Further, where an educational institution has
adopted rules or guidelines establishing procedures for the
suspension or expulsion of students, the institution must
substantially comply with those rules or guidelines (see Tedeschi
v Wagner Coll., 49 NY2d at 660; Matter of Schwarzmueller v State
Univ. of N.Y. at Potsdam, 105 AD3d 1117, 1118 [2013]; Matter of
                              -5-                522691

Weidemann v State Univ. of N.Y. Coll. at Cortland, 188 AD2d 974,
975 [1992]).

      Here, the University's determination to expel petitioner
for academic reasons was based on its assessment that petitioner
lacked the ability or effort needed to succeed in its political
science doctoral program. As the Vice Provost for Graduate
Studies and the Chair of the Political Science Department aptly
emphasized, the success of Ph.D. candidates, unlike students in
most other disciplines, is uniquely tied to the candidate's
ability to develop "strong mentoring and collaborative
relationships [with] faculty and students" and hear, understand
and appropriately respond to constructive criticism, so as to
form dissertation and field committees, successfully complete a
prospectus and dissertation and ultimately defend that
dissertation.

      The record clearly demonstrates that, despite repeated
advisements of a need for improvement, petitioner consistently
displayed an inability to listen and respond professionally to
constructive criticism of her work and challenges to her
intellectual positions. For example, the classroom incident on
February 6, 2013, which in part precipitated her dismissal,
epitomized petitioner's approach toward the academic offerings of
the University and her inability to work collaboratively toward
her Ph.D. During the class in question, petitioner was scheduled
to present a five-page paper distilling assigned readings within
a certain time allotment and pose questions to the class for a
seminar-style discussion. In lieu of the required paper,
petitioner prepared a powerpoint presentation, which she emailed
to the class and the professor the day before, along with
instructions to disregard certain portions of the assigned
reading. In response, the professor advised petitioner that a
powerpoint presentation could not be a substitute for the paper,
and petitioner replied that "the powerpoint would be more useful
to the class." The next day, the professor again urged
petitioner to submit the required paper and warned her of the
presentation structure to which she was expected to adhere.
Petitioner never submitted a paper and, during the presentation
itself, petitioner failed to comply with the time restrictions
and refused to yield the floor to allow for a classroom-wide
                              -6-                522691

discussion on the assigned readings. Even following the
incident, petitioner failed to acknowledge her shortcomings in
meeting the requirements of the assignment.

      In addition, petitioner's attitude and inability to receive
constructive criticism impacted her ability to satisfy the
academic requirements of the program. Petitioner had difficulty
filling her examination and field committees in accordance with
University policies and, significantly, at the time of her
dismissal in her third year of study, petitioner had yet to
secure a full complement of members for any of her three required
committees. Moreover, petitioner routinely requested to
substitute or waive program requirements, thereby evidencing the
mismatch between her interests and the University's political
science doctoral program. Petitioner continually struggled to
establish a minor field that met with the requirements of the
program and the approval of the Chair of the Political Science
Department. The Department denied petitioner's repeated requests
to design a special minor in methodology, and she continued to
press the issue into the spring semester of 2013, demanding that
she be given a "rational justification[], other than that power
[was] being asserted over [her], for the decision to not allow
[her] to take . . . methodology as [her] minor field." While
petitioner later expressed interest in establishing a double
minor in public law and public policy, she failed to meet the
deadline for completing a draft proposal for this double minor.
Notably, this proposal was due a few weeks after the classroom
incident.

      In short, the record demonstrates that petitioner's
dismissal was based on the University's academic assessment that
petitioner lacked the ability or effort needed to succeed in its
political science doctoral program and, thus, its determination
to expel petitioner was not arbitrary or capricious, irrational,
made in bad faith or contrary to Constitution or statute (see
Matter of Lipsky v Ferkauf Graduate Sch. of Psychology, 127 AD3d
582, 582-583 [2015]; see generally Matter of Susan M. v New York
Law School, 76 NY2d at 246-247). Nor did the University fail to
adhere to established rules or procedures (see 8 NYCRR 500.2
[c]), as the determination to expel petitioner was based entirely
on her failure to meet required academic standards (compare
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Tedeschi v Wagner Coll., 49 NY2d at 660-661).

      To the extent that any of the parties' outstanding
arguments have not been addressed, we have reviewed them and
found them to be lacking in merit.

     Garry, J.P., Egan Jr., Rose and Mulvey, JJ., concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
