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This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 28 

In the Matter of David Powers,

 Appellant,

 v.

St. John's University School of 

Law,

 Respondent.

Roland R. Acevedo, for appellant.

Michael J. Keane, for respondent.

Community Service Society of New York et al., amici

curiae.

ABDUS-SALAAM, J.:

This proceeding pursuant to CPLR article 78 challenges a

determination of St. John's University School of Law to rescind

petitioner David Powers's admission, after he had completed three

semesters of law school as a part-time student, based on material

misrepresentations and omissions in his application regarding his

criminal history. We agree with the Appellate Division that this

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determination "was not arbitrary and capricious, and does not

warrant judicial intervention" (110 AD3d 888,889 [2013]).

I.

In November 2005, Powers submitted an application to St.

John's University School of Law to become a part-time law

student. The application included the following question: 

"Have you ever been charged with, pleaded

guilty to, or been found guilty of any crime,

offense, or violation (other than a minor

traffic violation), or is any such action

pending or expected to be brought against

you? 

If yes, please explain in a supplementary

statement or electronic attachment the

relevant facts, including the nature of the

offense, the dates and courts involved, and

the penalty imposed, if any. Note: Although a

conviction may have been sealed or expunged

from the record by an order of the court, it

nevertheless should be disclosed in answer to

this question."

Powers answered the question "Yes" and submitted a three-page

"Background Disclosure" in which he stated, among other things,

that he was "not proud to admit that [he had] used drugs," that

in July of 1999 "[he] remembered being pulled over by the police

shortly after a drug deal," and that "[a]fter about a year, the

case proceeded and [he] accepted a plea bargain to attend an

inpatient rehabilitation program and complete probation." He

stated that he was convicted of "third degree possession of a

controlled dangerous substance." Powers did not, as required by

the application, explain all of the relevant facts or the "nature

of the offenses" for which he was charged. He had in fact been

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charged in the State of New Jersey with distribution of LSD,

second degree; possession of LSD with intent to distribute,

second degree; possession of drug paraphernalia; possession of

MDMA (colloquially known as Ecstasy), third degree; possession of

MDMA with intent to distribute; possession of LSD, third degree,

and possession of a controlled dangerous substance in a motor

vehicle. 

Further, Powers did not accurately represent his

convictions. He stated that he had been convicted of third

degree possession of a controlled dangerous substance, while in

fact, he had pleaded guilty to second degree distribution of LSD,

and second degree possession of LSD with intent to distribute.

The plea included an agreement that if defendant entered and

successfully completed an inpatient program of at least nine

months including any aftercare treatment, the State would consent

to the defendant withdrawing his plea and entering a guilty plea

to possession with intent to distribute in the third degree, as

amended, where the recommended sentence would be probation and

credit for time served in the inpatient program. The record

shows that defendant did in fact withdraw his plea and enter a

guilty plea to possession with intent to distribute in the third

degree. That is not a guilty plea to third degree possession of

a controlled substance, as Powers had reported in his

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application.1

The omissions and misrepresentations first came to the

attention of the law school after Powers had completed three

semesters as a part-time student, and while he was on a leave of

absence and working in Hong Kong. In September 2008, he wrote to

the Senior Assistant Dean for Students, Kathleen Sullivan,

stating that he intended to petition the Committee on Character

and Fitness for an advance ruling with respect to his past

conduct and his fitness to be admitted to the New York bar, and

he requested a letter of support from the law school. Powers

subsequently sent Dean Sullivan a draft of his letter to the

Committee on Character and Fitness, which stated, among other

things, that he had used drugs habitually from age 16 to 21, that

he "sometimes would sell drugs to others" and that in July 2001,

he had been arrested for "distribution of LSD to an undercover

officer and possession of Ecstasy." The Dean responded to Powers

that the information he had provided to the Committee on

Character and Fitness was not included in his application to the

law school, and that accordingly, the law school would not be

providing him with a letter of support. 

In November 2009, Powers applied for an extension of

his leave of absence to Spring 2011, which was granted. In July

2010, Powers requested from the law school a letter of good

1The records of Powers's arrest and convictions were

expunged by order of the Superior Court of New Jersey, Morris

County, dated October 27, 2005. 

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standing so that he could apply for a semester abroad in Tokyo.

At that point, Dean Sullivan sought guidance from other senior

administrators, including then Assistant Dean for StudentsDesignate Larry Cunningham. It was decided that the law school

would not provide the letter, and that, because it was apparent

that Powers intended to pursue his legal career, the law school

would start the process that it uses with respect to

misrepresentations and omissions on applications. 

The school advised Powers that in order to continue at the

school, he must seek to amend his application, including a full

accounting of the criminal activity at issue and an explanation

of why he had not disclosed it in his initial application. 

Powers was informed that upon receipt of the materials, the law

school would determine whether the non-disclosure and underlying

criminal activity warranted disciplinary action, which could

include rescission of his admission to the school. 

Powers responded in June 2010 by providing, among other

things, a copy of his presentence report which showed the charges

against him and his convictions pursuant to his plea. He had not

included that report with his original application. He stated

that he had consulted counsel about what he should disclose on

his law school application, and that he did not see any need to

amend the application because he considered the statement in his

application to be adequate. He wrote that he would be in New

York in July and available for a meeting. 

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In July 2010, Powers met with Dean Sullivan, Associate

Academic Dean and Professor of Law Valentine Turano, Vice Dean

Emeritus Andrew Simons and Dean Cunningham. He was given an

opportunity to explain his actions and was told he could submit a

written request to amend his law school application. Powers

wrote to Dean Cunningham and stated, among other things, that he

had looked over the statement that accompanied his application

"and would like to reaffirm that there is nothing in the

statement which is factually incorrect or needs to be amended.

The statement addresses relevant facts, the nature of the

offense, dates and the penalty imposed." He also wrote that the

presentence report clearly showed the original charges as well as

the final charges and the charges that the State consented to

upon his completion of a rehabilitation program. He noted that

he had completed the program as required and that the State had

consented to a new guilty plea of possession with intent to

distribute in the third degree. He explained that although he

was arrested for distribution, that was not something he did with

regularity. 

In September 2010, the law school notified Powers that his

application contained material omissions and misrepresentations

involving criminal charges brought against him, that he had

subsequently advised the school that he had been charged with

distribution of LSD and Ecstasy, and that the law school was

rescinding his admission.

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II.

Courts have a "restricted role" in reviewing determinations

of colleges and universities (Maas v Cornell University, 94 NY2d

87, 92 [1999][internal quotation and citation omitted]). A

determination will not be disturbed unless a school acts

arbitrarily and not in the exercise of its honest discretion, it

fails to abide by its own rules (Matter of Harris v Trustees of

Columbia Univ., 62 NY2d 956, 959 [1983] revg for reasons stated

in dissenting op of Kassal, J. 98 AD2d 58, 67-73) or imposes a

penalty so excessive that it shocks one's sense of fairness

(Matter of Pell v Board of Educ. of Union Free School Dist. No. 1

of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d

222, 234 [1974]). None of those factors is present here. 

 The law school's treatment of Powers was rational insofar

as it was not wholly inconsistent with the school's approach to

rescission of admission in general. The law school states that

while it routinely receives, and often grants, requests from

enrolled students to amend the criminal history sections of their

applications, such amendments usually involve minor offenses such

as open container or traffic violations, or small quantity

marijuana possession. Amendments are by no means guaranteed - -

the law school states that on at least two occasions, when the

information contained in the subsequent disclosure would have

prevented the individual from being considered for admission, the

students' admission was rescinded. 

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The law school avers that it has an unwritten policy of not

admitting people who sell drugs and that if Powers had disclosed

on his application that his arrest was for the distribution of

LSD to an undercover officer and possession with intent to

distribute, his application would have been denied during the

initial screening process. The school explains that it generally

distinguishes between applicants with a history of personal drug

use, and those with a history of drug dealing - - the former can

be accepted under certain circumstances, but the latter are not.

That is not an irrational policy and certainly within the

exercise of the law school's honest discretion. While Powers

questions whether there is such a policy because it is not

memorialized in writing, it is not necessary that the policy be

in writing for the school to apply the policy. It would be

untenable for courts to require that every factor that is taken

into consideration during the admission process be reduced to

writing. Further, the law school's response to Powers's belated

disclosure was not arbitrary or capricious, given that Powers was

on notice, based on the electronic certification that he

submitted with his application, that the failure to provide

truthful answers to the questions could result in denial of

admission, dismissal, or rescission of an awarded degree from the

school.

Additionally, the law school did not fail to follow its own

rules and procedures. Powers was not, as he contends, entitled

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to the grievance procedure set forth in the student handbook. 

The handbook states that it "is concerned specifically with the

conduct of students with respect to academic and related

matters." The handbook has sections that deal with school work,

attendance, and examinations. Thus, it is clear that the

grievance procedure does not apply to conduct of students that is

unrelated to academic and related matters, or unrelated to

conduct of students when they are enrolled (i.e., conduct

connected to the application process)(see Matter of Mitchell v

New York Med. Coll., 208 AD2d 929, 930 [2d Dept 1994][medical

student not entitled to a formal hearing pursuant to a student

handbook before being dismissed for a misrepresentation he made

in the admission process because the section of the handbook upon

which he relied was clearly aimed at misconduct committed by an

individual while a student at the school, not fraudulent acts

committed prior to admission]). Notably, while the law school

did not apply the formal grievance procedure, it did give Powers

a chance to amend his application and explain the

misrepresentations and omissions in writing, in addition to

affording him an opportunity to meet with school administrators

to explain his actions.

Finally, the penalty was not so "disproportionate to the

misconduct" (Pell, 34 NY2d at 234) as to be shocking to one's

sense of fairness. The law school application made it clear that

dire consequences could result if there was a failure to provide

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truthful answers. Thus, Powers was on notice of the potential

repercussions should he fail to truthfully and fully disclose his

record. Given this notice and the school's unquestionable

interest in ensuring the integrity of the future attorneys under

its tutelage, the penalty of rescission was not excessive. 

Accordingly, the order of the Appellate Division should be

affirmed, with costs, and the certified question should not be

answered as unnecessary.

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In the Matter of David Powers v St. John's University School 

of Law

No. 28 

PIGOTT, J.(dissenting):

David Powers has accomplished a significant amount

since his (now expunged) conviction. After successfully

completing an in-house drug treatment program, he graduated summa

cum laude with a Bachelor of Science degree in accounting and

obtained a Masters in Science degree in taxation. He is

currently a certified public accountant at a well-recognized

accounting firm, which hired Powers notwithstanding his prior

conviction. St. John's University School of Law is apparently

not as forgiving.

I respectfully dissent because, in my view, St. John's

failed to demonstrate with admissible proof that, had it known in

2005 that Powers had been convicted of a "distribution" offense

as opposed to a personal use offense (which is what Powers led

the school to infer on his application), it would have denied his

admission. The only indication that this was St. John's "policy"

back in 2005 was a hearsay statement contained in the only

affidavit submitted by a St. John's representative, Assistant

Dean for Students, Larry Cunningham, who was apprised of that

"policy" by one Robert Harrison, Assistant Dean for Admissions

and Student Financial Services. Although Dean Harrison may have

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conveyed to Dean Cunningham that had St. John's known that Powers

had been convicted of a distribution offense it would have

rejected Powers's application "out of hand and would not have

been submitted to the Committee on Admissions for review and

consideration," there is no affidavit from a St. John's

representative who had personal knowledge that that was, in fact,

St. Johns's policy when Powers applied in 2005. Whether that

was, in fact, St. John's policy is crucial to the determination

of this proceeding. 

I also disagree with the imposition of this particular

penalty -- rescission of Powers's three semesters worth of

credit. Ironically, the only reason the nature of Powers's

conviction was disclosed was because Powers requested a letter

from St. John's in support of his application for an advanced

ruling from the Appellate Division concerning whether he would be

admitted to the New York bar in light of his prior conviction,

thereby demonstrating his clear goal of becoming an attorney. 

Given that Powers had obtained three semesters worth of credit

and presumably paid tuition to attend, rescission of Powers's

application is, in my view, too harsh a penalty for the alleged

infraction. 

* * * * * * * * * * * * * * * * *

Order affirmed, with costs, and certified question not answered

as unnecessary. Opinion by Judge Abdus-Salaam. Chief Judge

Lippman and Judges Read, Stein and Fahey concur. Judge Pigott

dissents in an opinion. Judge Rivera took no part.

Decided April 2, 2015

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