Doe v. New York University
Filing
40
OPINION AND ORDER. Because Doe is not likely to succeed on the merits of her claim, her motion for a preliminary injunction is denied and the temporary restraining order is dissolved. Her motion to proceed under a pseudonym is granted. So ordered. (Signed by Judge Sidney H. Stein on 4/28/2021) (rjm)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JANE DOE,
Plaintiff,
V.
NEW YORK UNIVERSITY,
Defendant.
21-Cv-2199 (SHS)
OPINION & ORDER
SIDNEY H. STEIN, U.S. District Judge.
Plaintiff Jane Doe, a first-year student at defendant New York University ("NYU"),
brings this breach-of-contract action for specific performance pursuant to this Court's
diversity jurisdiction, 28 U.S.C. § 1332(a). (Compl., ECF No. 4.) Doe claims that NYU
violated the terms of the parties' implied contract when the university suspended her
for allegedly failing to adhere to NYU's COVID-19 safety policies. On March 17, this
Court granted Doe a restraining order temporarily enjoining NYU from enforcing its
suspension pending the resolution of Doe's motion for a preliminary injunction. (ECF
No. 13.) On April 14, after briefing from the parties, the Court heard oral argument on
that motion by teleconference. For the reasons set forth below, Doe's motion for a
preliminary injunction is denied and the temporary restraining order is dissolved. Her
motion to proceed under a pseudonym is granted.
I.
BACKGROUND
A. NYU's Response to the COVID-19 Pandemic
Plaintiff Doe began her freshman year of college in August 2020, as the COVID-19
pandemic insinuated itself across the country and disrupted daily life. College
campuses have been a hotbed of this disruption, with educational institutions
struggling to maintain in-person learning without enabling reckless student behavior
and potential "super-spreader" events. See Shawn Hubler & Anemona Hartocollis, How
Colleges Became the New Covid Hot Spots, N.Y. Times (last updated Oct. 26, 2020),
https://www .nytimes.com/2020/09/11/us/ college-campus-ou tbreak-covid.html.
NYU, located in downtown Manhattan, has taken extensive steps to control the
virus's spread while remaining open for in-person instruction. In addition to a
comprehensive, weekly testing program, NYU has implemented a series of health and
safety protocols restricting student behavior both on- and off-campus. These protocols
have been strictly enforced through disciplinary proceedings and sanctions, including
suspensions, and NYU has maintained a COVID-19 positivity rate of one percent or less
this academic year. That compares to a New York City positivity rate averaging
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approximately six percent during the same period. (See Def.'s Mem. at 1 n.2, ECF No. 33
(citing NYC COVID-19 Testing Data, New York Univ. (last updated Apr. 27, 2021),
https://www.nyu.edu/life/safety-heal th-wellness/ coronavirus-informa tion/n yc-covid19-testing-data.html).)
NYU promulgates its health and safety protocols through several interlocking
avenues. At the highest level, NYU regulates conduct pursuant to its University Student
Conduct Policy, which contains a number of broad proscriptions on harmful student
behavior. ("Student Conduct Policy," Compl. Ex. D, ECF No. 4-4.) As relevant here,
Policy Bl prohibits: "Engaging in or threatening to engage in behavior(s) that, by virtue
of their intensity, repetitiveness, or otherwise, endanger or compromise the health,
safety, or well-being of oneself, another person, or the general University community,
or that disrupt the effective continuation of the academic/education process for
individual students or for the general University community." (Id. at 2.) Section IV of
the Student Conduct Policy provides that off-campus conduct "should generally be
subject only to the consequences of the applicable authority," but explicitly reserves the
right to "take student disciplinary action for conduct occurring outside the University
context which substantially disrupts the regular operation of the University or threatens
the health, safety, or security of the University community." (Id. at 6.)
Additionally, in advance of the 2020 school year, NYU adopted a "Policy on
Requirements Related to Access to NYU Buildings and Campus Grounds Resulting
from the COVID-19 Pandemic." ("COVID-19 Access Policy," Compl. Ex. B, ECF No. 42.) This policy mandates face coverings and physical distancing while in NYU
buildings, prohibits non-essential visitors to NYU buildings, and establishes a
confidential "COVID Compliance Line" for the reporting of incidents of
noncompliance. (Id. at 2-3.) NYU also added Policy E3 to its Student Conduct Policy,
prohibiting violations of the COVID-19 Access Policy "or any related governmental
orders issued concerning public health." (Student Conduct Policy at 3.)
In order to effectuate and clarify these formal policies, NYU has issued extensive
COVID-related information to its students throughout the school year. These frequent
updates, provided by email, video, text, and online posting, have described both the
types of activities prohibited and the potential sanctions for misconduct. In July 2020,
more than one month before the school year began, students received an email
informing them that NYU "plans to strictly enforce the new safety and health rules we
are putting in place," including through the use of "interim suspension." Galley Deel.
Ex. 1, ECF No. 28-1.) Students were then required to watch a video in mid-August
instructing them to follow NYU's COVID-19 policies off-campus and to avoid bars and
parties, and informing them that students found in violation may face penalties up to
and including "suspension and de-enrollment." (Id. 1I1I 24-27, Ex. 3, ECF No. 28-3.) After
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viewing the video, students were required to submit an acknowledgement agreeing to
"abide by all applicable policies and procedures and make conscious efforts to
reasonably support the health and safety of myself and others within our community,"
and recognizing that "any violations may be subject to disciplinary action." (Id . 1127.)
NYU' s electronic records show that plaintiff Doe viewed this video and submitted the
required acknowledgement on August 18. (Id. 1127.)
On September 3, as fall classes began, students received an email entitled: "Keeping
Each Other Safe: Additional Guidance on University Expectations." (Id. Ex. 4, ECF No.
28-4.) This "additional guidance" gave examples of safe and unsafe activities, and
expressly instructed students to "stay away from gatherings where there are no masks
or distancing, even at off-campus private residences." (Id. (emphasis in original).) It also
informed students that, "[i]n general, if a student is found to have participated in a
gathering that impacts the community's health and safety, including by violating public
health guidelines, they will likely be suspended for one academic semester." (Id.)
The university updated and reinforced these guidelines at the onset of the spring
semester in January 2021. On January 15, students were required to watch another
video, which again informed them that attendance at "any gatherings where masks and
physical distancing are not appropriately observed, even when it occurs off-campus," is
grounds for sanctions up to and including "suspension from the university." (Id. 11113334, Ex. 7, ECF No. 28-7.) NYU' s electronic records show that Doe spent nearly eight
minutes watching this video, after which she signed another required
acknowledgement. (Id. Ex. 8, ECF No. 28-8.)
Thereafter, on the first day of classes, students received an updated version of the
September 3 guidance, which reiterated and emphasized that students were required to
"stay away from gatherings where there are no masks or distancing, even at offcampus private residences," and that students found participating in such gatherings
"will likely be suspended for at least one academic semester." (Id. Ex. 9, ECF No. 28-9
(emphasis in original).) This email also linked to a separate bulletin, posted the same
day, entitled: "Word on Gatherings." (Id. Ex. 10, ECF No. 28-10.) This bulletin reiterated
that "the University has made the choice to prohibit all large, non-essential, in-person
gatherings at this time," and expressly provided: "Regardless of the setting or the
reason, the University's policies on mask-wearing and physical distancing remain in
effect for all gatherings, and you will be held accountable for observing NYU' s safety
and health rules and any public health guidelines even if you are off-campus." (Id.)
B. Plaintiff Doe's Disciplinary Proceedings and Suspension
Doe began her freshman year at NYU in the fall of 2020, and she is now in her
second semester of study. (Doe Deel. 113, ECF No. 2-3.) She resides on campus in an
NYU dormitory, though she has returned to her home state of California during the
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pendency of these proceedings. This semester, Doe has been attending her classes
remotely, with the exception of one in-person lab course; since the day the Court
granted Doe a temporary restraining order, she has attended her lab remotely as well.
(Doe Deel. <_!I<_!I 15-16.)
This action arises out of an indoor event Doe attended at an off-campus apartment
on January 30, 2021-two days after the spring semester began. (Compl. <_II 61.) Doe
depicts this event as a "private dinner among the plaintiff and her fellow students," at
which there were "only seven" people in attendance, including Doe. (Id.) Doe
represents that two days prior to the dinner, she tested negative for COVID-19, and that
she then "remained alone" until the dinner. (Id. <_II 62.) She also represents that she
"confirmed that all other attendees had tested negative" before attending. Doe claims
that she wore a mask and practiced social distancing at all times while traveling to and
from the dinner; that she, and all other attendees, wore masks while in the apartment;
and that the "only time that I and the other diners removed [our] masks was when the
food was delivered and we sat down to eat our meals." (Doe Deel. <_!I<_!I 26-29.) Doe
further claims that, as the meal concluded, someone suggested a "very quick photo,"
immediately after which all attendees "put our masks on and said our goodbyes." (Id.
<_!I<_!I 30-31.)
Unsurprisingly, this "very quick photo" was very quickly posted on social media,
and two days later, a student filed an anonymous complaint with NYU' s Office of
Student Conduct and Community Standards ("OSC"). (Spera Deel. <_II 8, ECF No. 30.)
The complainant represented that he or she "saw some peers of mine the other night
having an indoor unmasked gathering of what looks like to be at least 7-8 people via
someone's post on a Snapchat story," and attached a copy of the photo. (Id.) The photo
depicts Doe and three other students packed tightly together indoors, posing for a
selfie. Multiple other students are visible in the background, with no evidence of masks
or social distancing. Because "the conduct portrayed in the photo indicated that NYU
students may have been engaging in an indoor gathering without masks or social
distancing-conduct that would violate the Student Conduct Policy and potentially the
COVID Access Policy," OSC began an investigation. (Id. <_II 10.) Indeed, unless the selfie
was photoshopped-and no party raises that possibility-the photo indicates that NYU
students were "engaging in an indoor gathering without masks or social distancing."
Jessica Spera, OSC's Assistant Director, met with the four students who posed for
the photo and ultimately found all four responsible for violating Section Bl of the
Student Conduct Policy, which prohibts "behavior(s) that, by virtue of their intensity,
repetitiveness, or otherwise, endanger or compromise the health, safety, or well-being
of oneself, another person, or the general University community," and Section E3, for
violating the NYU COVID-19 Access Policy "or any related governmental orders issued
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concerning public health." (Id. 'II'II 28-30.) Spera describes the students as providing a
shifting story, and represents that "[d]uring the course of these meetings, it became
clear to me that none of the four students [was] being fully forthright." (Id. 'II 25.) She
attaches an email from the first of the four, in which the student claimed only that the
attendees "had our masks on at all times when we were outside" the apartment-but
not during the event itself, as plaintiff asserts. (Id. Ex. 12, ECF No. 30-2.) Spera
represents that "the number of people who were reported to be at this gathering took
shape only after I suggested that there were at least seven to eight people visible in the
photograph." (Id. 'II'II 17, 28.)
Spera concluded that not only was the students' portrayal of the event not credible,
(Id. 'II 25), but also that the behavior depicted in the photograph, "alone, was an unsafe,
potential transmission event" in violation of both NYU policy and New York state and
city guidelines. (Id. 'II'II 26, 28 (emphasis in original); see Feinberg Deel. 'II'II 10-18, ECF
No. 32.) (discussing applicable state and city guidelines).) The four students were
therefore suspended for the remainder of the semester, which Spera claims to be
"consistent with the penalties imposed by OSC on other students found to have
attended unsafe on- or off-campus parties." (Id. 'II 30.)
Despite plaintiff's representation in her initial filings that "[p ]rior to the events of
this case, NYU has never disciplined me or charged me with any grounds for
discipline" (see Doe Deel. 'II 4), this incident was not Doe's first disciplinary proceeding
for potential violations of NYU's COVID-19 policies. Indeed, Doe had been
anonymously reported to OSC on two separate prior occasions. The first incident
occurred on August 29, 2020, soon after students arrived on campus for fall classes. The
report "involved a dormitory-wide group text, in which [Doe] had texted that her
boyfriend planned to travel from California to see her, apparently without
quarantining." (Fread Deel. 'II 6, ECF No. 29.) An OSC official met with Doe virtually to
discuss the matter, and to reiterate the importance of following NYU and New York
COVID-19 guidelines. (Id. 'II 7.) Thereafter, the official sent Doe an email stating that
"NYU is responding swiftly and seriously to violations of applicable policies," and
included links to the Student Conduct Policy and COVID-19 Access Policy. (See Pl.'s
Supp. Mem. Ex. 2, ECF No. 19-3.) OSC ultimately determined that the "incident did not
merit a formal charge process, as no violation had yet actually occurred." (Fread Deel. 'II
6.)
Less than a week later, Doe was reported again, this time for allegedly attending a
"rooftop gathering without following public health guidelines, therefore compromising
the health and safety of the NYU community." (Pl.'s Supp. Mem. Ex. 3, ECF No. 19-4.)
On this occasion, OSC filed formal charges alleging violations of Sections Bl and E3the exact same sections pursuant to which Doe was ultimately suspended. (Id.) At Doe's
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disciplinary conference, she denied attending such a party. Because the investigating
OSC official "did not have any evidence to the contrary, and [Doe] appeared to be
sincere and credible" (Fread Deel. 1110.), Doe was found not responsible for a violation.
Directly after the conference, OSC sent Doe an email once again reminding her of
NYU' s expectations and attaching all applicable university policies and guidance. This
included the recently promulgated September 3 guidance, in which students were
warned to "stay away from gatherings where there are no masks or distancing, even at
off-campus private residences," under penalty of a one-semester suspension. (Jolley
Deel. Ex. 4 (emphasis in original).)
Although Doe was found not responsible on both occasions, Spera represents that
these prior incidents further supported her decision ultimately to suspend Doe, as they
"confirmed in my mind that [Doe] had no valid basis to claim ignorance of the scope of
NYU's health and safety protocols." (Spera Decl.1127.) Doe was suspended for the
spring semester on February 18, and she filed an administrative appeal on February 25.
(Id. 1131.) One week later, her appeal was denied, and her suspension was finalized. (Id.
11 36.)
II. DISCUSSION
Plaintiff filed this action in mid-March, moving by order to show cause for a
preliminary injunction prohibiting NYU from enforcing Doe's suspension and seeking a
temporary restraining order during the pendency of the application for a preliminary
injunction. Doe alleges that NYU breached the parties' implied contract when it
suspended her for the above-described conduct. (Compl. 111112-13.) In particular, Doe
claims that the Student Conduct Policy was a "binding compact" between NYU and its
students, which did not allow the university to sanction conduct at off-campus, private
events. (Id. 111112, 31.) She claims, moreover, that the university "failed to support its
finding of a violation by legally sufficient evidence." (Id. 1112; Pl.'s Mem. at 17, ECF No.
2.) She alleges that she will be "irreparably harmed" if she is forced to "forfeit the
benefit of the work she already performed this semester." (Pl.'s Mem. at 14-15.)
On March 17, this Court held a teleconference at which it granted Doe a temporary
restraining order enjoining NYU from enforcing its suspension until the determination
of the motion for a preliminary injunction. (ECF No. 13.) The Court now denies Doe's
motion for preliminary injunction, as she has failed to show a "likelihood of success on
the merits." Otoe-Missouria Tribe of Indians v. New York State Dep't of Fin. Servs. 769 F.3d
105, 110 (2d Cir. 2014) (quoting Lynch v. City of New York, 589 F.3d 94, 98 (2d Cir. 2009)).
A. This Court Has Subject-Matter Jurisdiction over Article 78 Claims
The parties first dispute whether the Court has subject-matter jurisdiction to hear
this state-law diversity action. Without subject-matter jurisdiction, "the district court
lacks the power to adjudicate the merits of the case." Carter v. HealthPort Techs., LLC, 822
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F.3d 47, 54 (2d Cir. 2016); see Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time
that it lacks subject-matter jurisdiction, the court must dismiss the action."). Therefore,
the Court must begin with this inquiry. On the face of Doe's complaint, jurisdiction is
plainly appropriate: Doe, a domiciliary of California,1 brings this state-law action
against NYU, a citizen of New York, alleging damages in excess of $75,000.
Accordingly, the requirements of 28 U.S.C. § 1332(a) appear to have been met.
Nonetheless, NYU contends that an Article 78 proceeding is the proper route for
judicial review of university disciplinary matters, not a separate action. Under New
York law, Article 78 of the Civil Practice Law and Rules ("CPLR") establishes a
streamlined process for challenging the determinations of public bodies and
administrative agencies. Article 78 has a jurisdictional and a substantive element.
Jurisdictionally, Article 78 requires that an Article 78 proceeding be brought in New
York Supreme Court. N.Y. C.P.L.R. § 7804(b). New York courts have held that "the
Supreme Court has exclusive jurisdiction over Article 78 proceedings," with the
exception of certain specified proceedings. Vanderbilt Museum v. American Assoc. of
Museums, 449 N.Y.S.2d 399,403 (N.Y. Sup. Ct. 1982). Substantively, the "only questions
that may be raised" in an Article 78 proceeding are whether the challenged body "failed
to perform a duty enjoined upon it by law," or whether its actions were "without or in
excess of jurisdiction," "arbitrary and capricious or an abuse of discretion," or not
"supported by substantial evidence." N.Y. C.P.L.R. § 7803(1)-(4).
Although Article 78 proceedings generally involve challenges to the actions of
government agencies, the New York Court of Appeals has held that because the
"administrative decisions of educational institutions," including private universities,
"involve the exercise of highly specialized professional judgment ... CPLR article 78
proceedings are the appropriate vehicle," as they "ensure that the over-all integrity of
the educational institution is maintained." Maas v. Cornell Univ., 94 N.Y.2d 87, 92 (1999).
NYU urges that Article 78, as a "novel and special creation of state law ...
'designed to facilitate a summary disposition of the issues presented,"' Lucchese v.
Carboni, 22 F. Supp. 2d 256, 258 (S.D.N.Y. 1998) (quoting Davidson v. Capuano, 792 F.2d
275, 280 (2d Cir. 1986)), and pursuant to which jurisdiction is vested exclusively in New
York Supreme Court, deprives this Court of jurisdiction. NYU also concedes that the
case law on this point is "unclear." (Def.'s Mem. at 15.) The U.S. Court of Appeals for
the Second Circuit has not yet conclusively resolved the question of federal court
jurisdiction over Article 78 claims. It is also true that federal courts routinely decline to
"Courts have consistently recognized that out-of-state college students are temporary residents and not
domiciliaries of the states in which they attend college, because residence at college is chosen primarily
for the short-term purpose of pursuing an education." Hakkila v. Consol. Edison Co. of New York, 745 F.
Supp. 988, 990 (S.D.N.Y. 1990).
1
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exercise supplemental jurisdiction over Article 78 claims pursuant to 28 U.S.C. § 1367(c),
citing the special solicitude afforded to this "purely state procedural remedy." Camacho
v. Brandon, 56 F. Supp. 2d 370, 380 (S.D.N.Y. 1999); see also Birmingham v. Ogden, 70 F.
Supp. 2d 353, 372 (S.D.N.Y. 1999) ("[F]ederal courts are loath to exercise jurisdiction
over Article 78 claims."); Lucchese, 22 F. Supp. 2d at 258 (S.D .N .Y. 1998) (" Article 78
proceedings were designed for state courts, and are best suited to adjudication there.");
Herrmann v. Brooklyn Law School, 432 F. Supp. 236, 240 (E.D.N.Y. 1976) ("[T]his special
proceeding designed to accommodate to the state court system is best suited to that
system.").
Unlike this Court's supplemental jurisdiction, however, federal diversity
jurisdiction is nondiscretionary. See 28 U.S.C. § 1332(a). Accordingly, the question
presented is not whether the Court should exercise jurisdiction, but whether it may. The
cases in this district are split. Compare Cartagena v. City of New York, 257 F. Supp. 2d 708,
709-10 (S.D.N.Y. 2003) ("State law does not permit Article 78 proceedings to be brought
in federal court, and hence I conclude that I do not have the power to exercise
supplemental jurisdiction over Cartagena's Article 78 claims."), with Casale v. Metro .
Transp. Auth., 2005 WL 3466405, at *6 (S.D.N.Y. 2005) ("State law may direct that '[a]
proceeding under this article shall be brought in [state] supreme court,' but this
requirement has nothing to do with whether the proceeding falls within a federal
jurisdictional statute.").
This Court agrees with the latter view and now holds that the federal courts may
properly exercise diversity jurisdiction over Article 78 claims. Indeed, just as Article 78
requires that its proceedings "shall be brought in supreme court," N.Y. C.P.L.R. §
7804(b) (emphasis added), so too does section 1332(a) require that "[t]he district courts
shall have original jurisdiction" over diversity actions, 28 U.S.C. § 1332(a) (emphasis
added). As then-Judge Mukasey pointed out in Casale, "[i]f such a directive" from state
law "could deprive federal courts of jurisdiction, state legislatures, not Congress, would
control the power of the federal judiciary." 2005 WL 3466405, at *6.
This action, which involves a disciplinary dispute between a private individual and
a private university, illustrates the incongruity of such a result. As noted above, Article
78 proceedings generally involve claims against state governmental entities, where
considerations of comity and federalism caution against undue federal intervention. See
Cartagena, 257 F. Supp. 2d at 710-11 (holding that federal courts lack Article 78
jurisdiction in part because "this Court must respect the limits imposed by the State on
the rights of its citizens to hold a public authority accountable to its laws" (internal
quotations omitted)). Here, however, there is no public authority involved, nor a
challenge to any state action. There is only New York state's policy determination to
subject certain private disputes to a streamlined, exclusive procedure with, importantly,
a more deferential standard of review. See Maas, 94 N.Y.2d at 92. If the New York
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legislature's decision divested this Court of its ability to hear cases otherwise squarely
within its original jurisdiction, states would indeed hold ultimate authority over the
power and jurisdiction of the federal judiciary. Such a result is plainly inconsistent with
the structure of the U.S. Constitution and its Supremacy Clause. See U.S. Const. Art. VI,
cl. 2.; cf McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).
Inasmuch as exercising Article 78 jurisdiction, in a specific instance, "would be
disruptive of state efforts to establish a coherent policy with respect to a matter of
substantial public concern," New Orleans Pub. Serv., Inc. v. Council of City of New Orleans,
491 U.S. 350, 361 (1989) (quoting Colorado River Water Conservation Dist. v. United States,
424 U.S. 800, 814 (1976)), federal courts may apply longstanding and well-established
abstention doctrines to the issue of whether the federal court should exercise jurisdiction
over the dispute. 2 Accordingly, the Court moves to the merits of Doe's claim.
B. Legal Standard
Plaintiff seeks a preliminary injunction pursuant to Rule 65(a) of the Federal Rules
of Civil Procedure. "[A]n injunction is 'an extraordinary remedy never awarded as of
right."' Agudath Israel of Am. v. Cuomo, 979 F.3d 177, 179~80 (2d Cir. 2020) (quoting
Winter v. Nat. Res. Def Council, 555 U.S. 7, 24 (2008)). In order to obtain a preliminary
injunction, a plaintiff must demonstrate that she is (1) "likely to succeed on the merits,"
(2) "likely to suffer irreparable harm in the absence of preliminary relief," (3) that "the
balance of equities tips in [her] favor," and (4) that "an injunction is in the public
interest." Id. at 180; see Broker Genius, Inc. v. Volpone, 313 F. Supp. 3d 484,495 (S.D.N.Y.
2018). Because plaintiff's case falls on the first prong of this test, the Court begins there.
C. Likelihood of Success on the Merits
1.
NYU's Disciplinary Decisions Should Be Evaluated Under Article 78's
Deferential Standard of Review
As an initial matter, the parties dispute the substantive law under which plaintiff's
likelihood of success should be evaluated. NYU argues that even if there is federal
subject-matter jurisdiction over Doe's claim-as this Court has determined there is-the
NYU' s argument that the Court should abstain pursuant to Burford v. Sun Oil Co., 319 U.S. 315 (1943) is
of no moment. Burford abstention "allows a federal court to dismiss a case only if [1] it presents 'difficult
questions of state law bearing on policy problems of substantial public import whose importance
transcends the result in the case then at bar' or [2] if its adjudication in a federal forum 'would be
disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public
concern."' Quackenbush v . Allstate In s. Co., 517 U.S. 706 (1996) (quoting New Orleans Pub. Serv., Inc., 491
U.S. at 361). The U.S. Supreme Court has warned that "Burf ord permits ' a federal court sitting in equity'
to dismiss a case only in extraordinary circumstances." Id . No such extraordinary circumstances exist
here.
2
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Court is bound to apply Article 78' s deferential standard of review, pursuant to which a
university's disciplinary determination may only be overturned if it was "in excess of
jurisdiction," "arbitrary and capricious or an abuse of discretion," or not "supported by
substantial evidence." N.Y. C.P.L.R. § 7803(2)-(4). Under Article 78 review, a private
university's disciplinary determination will be upheld as long as it "substantially
complied with its established disciplinary procedures." Kickertz v. New York Univ., 25
N.Y.3d 942, 944 (2015). Moreover, a punishment may only be overturned if the Court
concludes that the "measure of punishment or discipline imposed is so
disproportionate to the offense, in light of all the circumstances, as to be shocking to
one's sense of fairness. " Matter of Pell v. Bd. of Educ. of Union Free Sch. Dist. No. 1, 34
N.Y.2d 222, 233 (1974).
Doe, meanwhile, contends that she is the "master of her complaint," and that she
"elected to bring her lawsuit" as a freestanding contract claim "under permissible rules
of diversity jurisdiction." (Pl.'s Reply at 5, ECF No. 35.) According to plaintiff, NYU
thus may not invoke Article 78's "more deferential" standard. (Id.) It is true that "the
plaintiff is the master of the complaint" for jurisdictional purposes. Marcus v. AT&T
Corp., 138 F.3d 46, 52 (2d Cir. 1998). However, she is not the master of the substantive
law that applies to her claim. Indeed, when sitting in diversity, neither is this Court,
which must look to and apply the law of the forum state. See Erie R. Co. v. Tompkins, 304
U.S. 64, 78 (1938) ("There is no federal general common law."); see also DiBella v.
Hopkins, 403 F.3d 102, 111 (2d Cir. 2005) (holding that, when hearing a New York statelaw claim "under our diversity jurisdiction, we are obligated to apply New York's
standard of proof").
Looking to New York law, state court decisions establish that "to the extent [a]
plaintiff's causes of action are, in essence, a challenge to the determination" to discipline
her, she is "only entitled to article 78 review." Kickertz v. New York Univ., 110 A.D.3d
268, 272 (N.Y. App. Div. 2013); see also Ansari v. New York Univ., 1997 WL 257473, at *2
(S.D.N.Y. 1997) (noting that state-court review of suspensions "has been limited to
Article 78 proceedings"). Here, though Doe has creatively pied her complaint as a
breach-of-contract action for specific performance, there is no dispute that the essence of
her claim is a challenge to NYU's sanction of suspension. As New York courts are
further instructed to convert a plaintiff's errant freestanding contract action into an
appropriate Article 78 proceeding, this Court will do the same here. See Walsh v. New
York State Thruway Auth., 24 A.D.3d 755, 756 (N.Y. App. Div. 2005) ("[T]he courts are
empowered and indeed directed to convert a civil judicial proceeding not brought in
the proper form into one which would be in proper form[.]" (quoting Matter of First
Natl . City Bank v. City of New York Finance Admin., 36 N.Y.2d 87, 94 (1975))). The Court
thus concludes that Article 78' s more deferential standard of review applies to Doe's
claim.
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2.
Plaintiff Has Not Shown a Likelihood of Success on the Merits
Ultimately, the standard of review to be applied here is irrelevant, as Doe has failed
to show that she is "likely to succeed on the merits" of her claim under any standard.
Doe's core allegation is that NYU' s health and safety protocols did not purport to, and
thus could not, operate to sanction private, off-campus conduct such as the alleged
seven-person dinner for which she was suspended. Doe's briefing relies on the
interplay between Policy Bl and Policy E3, the two Student Conduct Policy provisions
under which Doe was found liable. Doe argues that Policy Bl, which prohibits
"behavior(s) that, by virtue of their intensity, repetitiveness, or otherwise, endanger or
compromise the health, safety, or well-being of oneself, another person, or the general
University community," was only a "general student conduct policy," and that Policy
E3, which incorporated the COVID-19 Access Policy, was the more specific and thus
operative COVID-19 conduct policy. (See Def.'s Mem. at 17 ("Black letter contract law
dictates that specific policies and provisions control over general ones.").) Because the
COVID-19 Access Policy only purports to apply "in NYU Buildings and on Campus
Grounds" (COVID-19 Access Policy at 1), Doe argues that NYU's COVID-19
enforcement jurisdiction is limited to on-campus violations.
Even taken on its own terms, this argument likely fails. It is true that the COVID-19
Access Policy applies only on campus grounds; however, the policy "does not state or
even suggest that it is an 'exclusive' policy." (Jolley Deel. 1122.) Moreover, though
Policy E3 indeed incorporates the COVID-19 Access Policy, it also prohibits violations
of "any related governmental orders issued concerning public health." (Student
Conduct Policy at 3.) Doe makes much out of the fact that the subject dinner "was in full
compliance with New York State guidance," as it allegedly involved fewer than 10
people, the maximum number allowed at private indoor gatherings. As NYU points
out, however, the applicable guidance also required that attendees at such gatherings
"comply with social distancing protocols." (See Feinberg Deel. 1113 (quoting N.Y.R.R. §
66-3.3).)
Accordingly, in addition to determining that plaintiff's depiction of the event was
not credible, OSC appropriately found that the subject photograph "itself" depicted
conduct in violation of "state and city guidelines for non-essential gatherings," as
prohibited by Policy E3. (Spera Deel. 1128.) And though plaintiff excerpts a portion of
the Student Conduct Policy stating that "[t]he University shall not use its powers to
interfere with the rights of a student beyond the University environment" (Pl.'s Mem. at
16), that same provision continues on: "Notwithstanding, the University may take
student disciplinary action for conduct occurring outside the University context which
substantially disrupts the regular operation of the University or threatens the health,
safety, or security of the University community." (Student Conduct Policy at 6.) Even
on plaintiff's own submissions, it appears that NYU adhered to its own policies in
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deeming Doe's unmasked, non-distanced behavior at an indoor gathering with several
others a violation.
More significant than the NYU communications Doe cites in her support, however,
are those that she failed to cite in her complaint and moving papers. In essence,
plaintiff's claim, whether viewed as an Article 78 challenge or a contract action, boils
down to the contention that NYU never expressed a clear intent to regulate off-campus
conduct. In light of the record here, this contention holds no weight. As described in
detail above, NYU issued repeated, clear, forceful notices to the student body that its
Student Conduct Policy applied to off-campus conduct. As early as mid-August 2020,
students were required to watch a video directing them to follow NYU's COVID-19
policies off-campus and to avoid bars and parties, and informing them that students
found in violation could face suspension. (See Jolley Deel. Ex. 3.) Doe viewed this video
and submitted a required acknowledgement that she had done so on August 18. (Id. <_[
27.) Two weeks later, students received the September 3 guidance, instructing them to
"stay away from gatherings where there are no masks or distancing, even at offcampus private residences." (Id. Ex. 4 (emphasis in original).) That notice explicitly
stated that "if a student is found to have participated in a gathering that impacts the
community's health and safety, including by violating public health guidelines, they
will likely be suspended for one academic semester." (Id.) January 28-two days before
the dinner Doe attended-students received another email reiterating the continuing
applicability of these policies. That notification expressly provided: "Regardless of the
setting or the reason, the University's policies on mask-wearing and physical distancing
remain in effect for all gatherings, and you will be held accountable for observing
NYU' s safety and health rules and any public health guidelines even if you are offcampus." (Id. Ex. 10.) On that same date, Doe viewed another required video reiterating
NYU's COVID-19 policies and signed an acknowledgement to that effect. (Id. <_[ 36.)
Indeed, NYU' s electronic records reflect that she watched the video for nearly eight
minutes. (Id. Ex. 8.)
Plaintiff can hardly claim ignorance of these clear policies; this incident represented
her third disciplinary proceeding, despite her artful claim that "[p ]rior to the events of
this case, NYU has never disciplined me or charged me with any grounds for
discipline." (Doe Deel. <_[ 4.) Indeed, one of these incidents - in which she allegedly
attended a rooftop party, an allegation Doe denies - did in fact result in NYU formally
charging her with violations of Sections Bl and E3 of the Student Conduct Policy, the
same provisions under which she was later suspended. Moreover, after each
proceeding OSC emailed her yet another copy of all applicable NYU COVID-19 policies
and guidance. (Fread Deel.<_[<_[ 6-10; Pl.'s Supp. Mem. Ex. 3.)
In response, plaintiff does not dispute that she was bound by these
communications, guidance documents, and policies. Instead, she argues only that
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"NYU's communications[,] whether by video, email, formal policy, or website updates
were at best unclear to a student who is subject to the university's dynamic change in
policy." (Pl.'s Reply at 6.) She acknowledges that she received NYU's September 3
guidance, but claims that she "received dozens of notifications from NYU about its
response to the COVID-19 pandemic," and that she thus "did not open the
correspondence until after commencing this litigation." (Pl.' s Supp. Mem. at 3-4.) She
also admits that she opened the email she received after her second disciplinary
proceeding-which included links to all relevant NYU policies and guidance-but
claims that "[a]fter reviewing the portion of the email indicating no responsibility, I
stopped reading [the] correspondence and closed the email." (Doe Supp. Deel. 1119.)
Put simply and charitably, the Court finds Doe's arguments unpersuasive. Despite
plaintiff's conclusory assertion that NYU' s guidelines were "at best unclear," the
university repeatedly communicated, in no uncertain terms, the off-campus
applicability of its policies. NYU further left no doubt that attendance at such a
gathering would "likely" result in a one-semester suspension. It is implausible that Doe,
after two previous disciplinary encounters with the university, including the filing of
formal charges against her, was unaware of the scope and sweep of NYU's COVID-19
restrictions. The manifestly violative behavior depicted in the photograph itself
represents a breach of both NYU's guidelines and New York state COVID-19
regulations.
The Court accordingly finds that Doe has not established a likelihood of success on
the merits. The evidence before the Court suggests that NYU properly followed its
clearly stated policies when it suspended Doe for attending an indoor, off-campus
gathering at which students were unmasked and failing to socially distance. Doe has
certainly failed to demonstrate that NYU' s sanction of suspension was "arbitrary and
capricious or an abuse of discretion." N.Y. C.P.L.R. § 7803(3). And though a onesemester suspension for violating COVID-19 restrictions is a serious punishment, New
York courts presented with similar lawsuits have found that it does not "shock the
conscience." See, e.g., Matter of Storino et al. v. New York Univ., No. 2020-04294 (1st Dep't
Apr. 1, 2021); Rosenberg v. New York Univ., No. 160326/2020 (Sup. Ct. N.Y. Cnty. Dec. 11,
2020). Indeed, although not necessary to resolve this motion, on the record before the Court
NYU' s conclusion that Doe violated NYU' s clear COVID protocols and was subject to
suspension was perfectly reasonable. 3
Because the Court has found that there is not a likelihood of Doe succeeding on the merits of her claim,
it is not necessary to analyze whether Doe has demonstrated she is likely to suffer irreparable harm in the
absence of preliminary relief, whether the balance of equities tips in Doe's favor, nor whether an
injunction would be in the public interest.
3
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D. Plaintiff's Motion to Proceed Under a Pseudonym
Doe has also moved for permission to proceed under a pseudonym for the
remainder of these proceedings. Though Rule lO(a) requires that "[t]he title of the
complaint must name all the parties," courts have "nevertheless 'carved out a limited
number of exceptions to the general requirements of disclosure."' Sealed Plaintiff v.
Sealed Defendant, 537 F.3d 185, 189 (2d Cir. 2008) (quoting Roe v. Aware Woman Ctr. for
Choice, Inc., 253 F.3d 678, 685 (11th Cir. 2001)). The Second Circuit has laid out a nonexhaustive ten-factor balancing test to weigh the plaintiff's need for anonymity against
the "countervailing interests in full disclosure." Id.
Here, the Court exercises its discretion under that balancing test, see id. at 189-90, to
grant Doe's motion. Most relevantly, the Court believes that in this action,
"identification poses a risk of retaliatory physical or mental harm to the party seeking to
proceed anonymously." Id. at 190. Doe is 19 years old and in her first year of college,
and though she of course made the decision to bring this lawsuit, the Court sees no
reason to expose her to potential online retaliation for what some might characterize as
reckless or selfish conduct. And, given her stated career goals (see Doe Deel.
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