Matter of Iwachiw v CUNY

[*1] Matter of Iwachiw v CUNY 2011 NY Slip Op 51714(U) Decided on August 2, 2011 Supreme Court, New York County Stallman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 2, 2011
Supreme Court, New York County

In the Matter of the Application of Walter Iwachiw, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules

against

CUNY, Lehman, Baruch, NYS, NYC, CUNY Grad Center, Respondents.



400807/11

 

Petitioner:

Walter Iwachiw

48-35 41st Street

Sunnyside, NY 11104

631-731-1599

Respondents:

Eric T. Schneiderman

Attorney General of the State of New York

Attorney for Respondent CUNY

By: Steven L. Banks

Assistant Attorney General

120 Broadway, 24th Floor

New York, New York 10271

212-416-8621

Michael D. Stallman, J.

In this Article 78 proceeding, petitioner, a City University of New York (CUNY) student, challenges various academic decisions allegedly made by CUNY and its constituent colleges and seeks various mandatory and injunctive relief.

BACKGROUND[*2]

In his Order to Show Cause, as signed April 1, 2011, the petitioner requested the following relief: (1) Enjoining Lehman College from barring Walter Iwachiw, RN from attending and participating fully including blackboard access in Spring 2011 semester

775 classes/clinicals (sec XH81/code 2658 and sec XH82 code 2659) and Fall 2011 Nur 776 classes/clinicals applied toward a post graduate FNP Certificate from Lehman or graduate level second degree Family Nurse Practitioner Degree pending the outcome of this case and applying these to graduation for June or Aug of 2011. (2) Directing Lehman College to advance Walter Iwachiw RN the entire amount of student loans or grants due him as a full time student at Lehman College for the Spring 2011 semester.(3) Directing Lehman College to immediately advance the $150.00 maintenance of matriculation fee, tuition fees and any other fee for the Spring 2011 semester on behalf of Walter Iwachiw RN(4) Enjoining Lehman College from barring access of Walter Iwachiw to any area of the Lehman Campus or any outside Lehman Alumni, Student or Faculty events.(5) Directing Lehman College to restore all emails between the Petitioner and the college staff and professors from the beginning of attendance in 2008 and March 31, 2011, inclusive.(6) Directing Lehman College to immediately restore the syllabus and other documents to Nur 771 blackboard for Spring 2010.(7) Enjoining Baruch College from barring Walter Iwachiw RN from attending and participating fully including blackboard access in Spring 2011 semester Spanish 1002 and Lib 1015 courses which are to be applied toward a Baruch College undergraduate telemedicine degree and Baruch alumni card in June 2011.(8) Directing Prof Brian Rhinehard of Baruch College to immediately facilitate the return of original DVD's recordings belonging to Walter Iwachiw RN of the "Boy's Life" production from students operating under his authority, for re-submittal to Professors Krebs as the remaining outstanding portion of the INC for Fall 2010 semester Theatre course.(9) Directing the modern Language Department of Baruch College to afford a negotiated disabled accommodations for Walter Iwachiw's work in Spanish 1002 in the fall 2010 semester a period when Walter Iwachiw was totally disabled.(10) Enjoining the CUNY Graduate Center from barring Walter Iwachiw RN from [*3]admission and full participation to the Doctor of Nursing Science fall 2011 cohort.(11) Directing that CUNY certify Walter Iwachiw RN as a financially disadvantaged student and permit the signing of an faculty employment contract by May 3, 2011, in order to entitle him to preferential access to the federal Faculty Loan repayment grants, with applications due May 6, 2011 by 5 pm.(12) Directing Lehman to retroactively admit Walter Iwachiw RN in to the post master certificate program or second degree FNP graduate degree and register Walter Iwachiw RN for Nur 775 in the spring 2011 semester applying accommodations for disability and delays caused by the Lehman Staff and Professors,(13) Directing Lehman College to submit the following grades for Walter Iwachiw RN in Nur 771, in blackboard and the official record of Walter Iwachiw, (case study grade of 93), case 2 ("case 9" in nur 771) grade of 72, case 3 (("case 13 nur 771 corrected from 2"), grade of 70, midterm grade of 68 and final grade of 70. Furthermore, the grades are to applied according to the following syllabus distribution, midterm 20% (20*.68 = 13.6), final 30% (30*.70 = 21), 3 case study papers combined 50% (93 + 72 + 69 = 234) 234/3 = 73 (50*.73 = 39) so nur 771 final grade 13.6 + 21 + 39 = 73.6(14) Directing Lehman College to submit the following grades for Walter Iwachiw RN in Nur 772, in blackboard and the official record of Walter Iwachiw. Assignment 1 grade of 88, quiz 1 grade of 65, quiz 2 grade of 72.5, midterm grade of 70 and final exam grade of 77, directing that the grades are to applied according to the following syllabus distribution, quiz 1 grade of 65 15% (15*.65 = 9.75) quiz 2 grade of 72.5 15% (15*.725 = 10.88), midterm 25% (25*.68 = 13.6), final 30% (30*.77 = 23.1), sole assignment papers 88 (15*.88 = 13.2) so nur 771 with a final grade (9.75 + 10.88 + 13.6 + 23.1 + 13.2 = 74.5) of 74.5.(15) Directing Lehman College to graduate Walter Iwachiw RN with a Pediatric Nursing Practice degree effective Jan 31, 2011 and absent meeting that date that CUNY be liable for damages caused thereof, advancing any funds due.(16) Directing Lehman College to honor the admission request of 2010 into the FNP programs and admit Walter Iwachiw RN into the Post Masters Family Nurse Practitioner Practice program or Second graduate degree program for Family Nurse Practitioner for graduating effective the completion of Nur 775 in June 2011 or Nur 776 whichever is the earlier graduation, advancing any funds due.(17) Directing CUNY to sign a faculty full professor employment contract with Walter Iwachiw RN with the provision that he is full vested in the pension and medical benefits and with full tenure protection to prevent any further retaliation,[*4](18) Ordering the CUNY Graduate Center to honor the admission application of 2010 and admit Walter Iwachiw RN into the fall 2011 Doctor of Nursing Science cohort for [f]all 2011 semester, advancing any fees due.(19) Directing CUNY to institute a CUNY wide standard grading policy and combine the administration of the campuses to expand the funding available to student services in particular disability services and an independent ombudsman office. Walter Iwachiw RN shall be named the chief officer of the central undergraduate and graduate nursing programs responsible for consolidation. That CUNY wide grading policy shall be inclusive of numeric grades to the third decimal place and rounded up to two places and consistent across the CUNY system,(20) Directing CUNY to institute a single multicampus 504 grievance hearing to address the denial of EEOC, Disability, disadvantaged, grading policy abuse and retaliation in the form of aggravated harassment, and denial of services.(21) Directing Baruch to reregister Walter Iwachiw for Spa 1002 in the spring semester and LIB 1015 in the spring semester and advance any tuition fees required until the outstanding balance can be converted to educational loans and eligible for repayment thru [sic] federal loan repayment grants, [p]lus advance the tuition due and any other relief that may become necessary.(22) The Petitioner respectfully prays for an order with such additional punitive, compensatory, and other relief that the court may deem just and proper against the respondents. (Petitioner's order to show cause at 2-6.)

The Court, in revising the proposed Order to Show Cause, struck other provisions including, "[e]njoining Lehman College Campus Police from carrying or possessing weapons within 1,000 feet of the petitioner Walter Iwachiw while on Campus." (Id.)

Petitioner alleges that he is currently a master's degree candidate at CUNY's Lehman campus in the Pediatric Nurse Practitioner (PNP) program. However, Lehman College contends that he is not a student there because he is not taking any courses at Lehman College and he has not paid his maintenance of matriculation fee. (Zucchetto affidavit exhibit D.) It appears that he began his studies in Fall 2008 and to date has successfully completed ten of the twelve required courses. According to the PNP's academic policies, in order to graduate from the PNP program, a candidate must complete Nursing 771 and Nursing 772 and maintain a cumulative grade point average (GPA) of at least 3.0. (Georges affidavit ¶7.)

It appears that petitioner received grades of incomplete (INC) in both Nursing 771 and Nursing 772. He registered for Nursing 771 in Spring 2010, but received a grade of INC because, CUNY alleges, he did not complete two required case studies. He registered for Nursing 772 in Fall 2010, but received an INC in that course because, CUNY also alleges, he did not complete the required number of clinical hours at Elmhurst Hospital. According to Lehman College's academic policies, a student receiving an INC in any class will have up to one calendar [*5]year to complete the coursework and receive a grade and credit for the class. Petitioner allegedly attempted to cure his INC in Nursing 771 by handing in the two case studies. However, CUNY contends that the work was unsatisfactory; hence petitioner received a grade of F for the class. It appears that petitioner appealed his failing grade, and it was changed back into an INC, which gave him the opportunity to resubmit his work for grading by the end of the Spring 2011 semester.

Petitioner applied for Spring 2011 graduation. He was informed in November 2010, however, that he was ineligible to graduate because he had not met the requirements for graduation due to his grades of INC. (Petitioner's exhibits 36, 37.) As of March 2, 2011, petitioner still had two grades of INC on his transcript and was ineligible to graduate. (Petitioner's exhibit 38.) According to Lehman College's academic policies, petitioner will remain ineligible to graduate unless he satisfactorily completes his coursework for both classes.

Petitioner is allegedly simultaneously completing a Bachelor's degree program at Baruch College. During the Fall 2010 semester, it appears that he was enrolled in four courses, including Spanish 1001 (Elementary Spanish I). He received a grade of INC because he did not sit for the final exam at the end of the semester. Petitioner attempted to complete the course by sitting for the final exam in March 2011. However, he failed the exam and received a failing grade for the course. According to Baruch College, Spanish 1001 is a prerequisite for Spanish 1002 (Elementary Spanish II). It appears that petitioner attempted to register for Spanish 1002, but CUNY contends that he was unable to register because he had not satisfactorily completed the prerequisite course, and is therefore ineligible to attend the class.

Respondents allege that petitioner has repeatedly attempted to attend classes he is not registered for, including Nursing 775 at Lehman College and Spanish 1002 at Baruch College. CUNY asserts that campus security escorted petitioner out of offices and classrooms because of his allegedly disruptive behavior. Despite this, CUNY alleges that he continues to loiter outside the classrooms while these classes are being conducted, which CUNY asserts is making other students uncomfortable. One professor was allegedly asked to intervene and have the petitioner barred from campus during classes.

In early 2010, petitioner applied for Fall 2010 admission to the Doctor of Nursing program at the CUNY Graduate Center. His application was rejected because CUNY Graduate Center found that petitioner did not meet the minimum qualifications for admission. According to the Doctor of Nursing program's admission policies, to be considered for admission, an applicant must have a master's degree in nursing. Petitioner has allegedly not completed the PNP program at Lehman College and thus has not earned a master's degree. In April 2010, he was informed by letter that he was not chosen for admission to the doctoral program.

In 2010 and 2011 petitioner applied for faculty positions. A faculty position would enable him to be eligible for the Faculty Loan Repayment Program. (Petitioner's exhibits 40, 41.) Petitioner alleges that he depends on financial aid and that he is allegedly in financial difficulty as a result of not being able to graduate or be accepted into the Family Nurse Practitioner or the Doctor of Nursing programs. (Petitioner's reply ¶15.)

Petitioner alleges that, on September 19, 2010, he was assaulted by three men, which allegedly rendered petitioner totally disabled. Petitioner contends that he was denied reasonable accommodation for his disability by Lehman College. However, CUNY alleges that when [*6]petitioner met with the Office of Services for Students with Disabilities at Baruch College, he did not provide any of the required medical documentation of his alleged disabilities and did not return with medical documentation as requested. Additionally, there is no evidence in the record that petitioner requested accommodations at Lehman College.

I.

In this Article 78 proceeding, CUNY is the only properly named respondent. Lehman College and Baruch College are senior colleges within CUNY, and CUNY Graduate Center is a citywide graduate school within the CUNY system. They have no separate legal existence. (Clissuras v City Univ. of New York, 359 F3d 79, 81 n 2 [2d Cir 2004].) The State of New York is not an officer or body against which an Article 78 proceeding may be brought. (Patchogue Scrap Iron & Metal Co v Ingraham, 57 Misc 2d 290, 291 [Sup Ct, Suffolk County 1968].) The petitioner appears to be also suing the City of New York, by his reference to NYC in the caption. However, New York City is not a proper respondent in this action, as CUNY is considered an agency or body of the of the State of New York, with respect to its senior colleges or graduate programs; CUNY is not an agency of the City of New York. (Clissuras, 359 F3d at 83).

II.

An Article 78 proceeding must "be commenced within four months after the determination to be reviewed becomes final and binding on the petitioner. (CPLR 217 [1].) In this case, the proceeding was commenced on March 28, 2011, when the petitioner purchased an index number and filed a copy of a proposed, unsigned Order to Show Cause with the New York County Clerk's Office. Therefore, any challenges to determinations that became final before November 28, 2010, which is four months prior to the filing of this action, are time-barred. Such determinations include the April 2010 decision denying petitioner admission to the Doctor of Nursing Science program. (Frederickson affidavit exhibit B.)

III.

Petitioner is asking the court to make a determination about the academic policies of an educational institution. However, it is well established that courts will leave determinations of academic standards and policies to the institution itself since the "academic and administrative decisions of educational institutions involve the exercise of subjective professional judgment, public policy compels a restraint which removes such determinations from judicial scrutiny." (Gertler v Goodgold, 107 AD2d 481, 487 [1st Dept 1985].) The college determined that Petitioner's coursework for Nursing 771 and Nursing 772 was incomplete and assigned a grade of INC, allowing petitioner up to one calendar year to complete the coursework for a grade and credit. Petitioner merely alleges that he completed all coursework and that he earned a grade of 73.6 in Nursing 771 and 74.5 in Nursing 772. (Petitioner's exhibit 1.)

This is a grading dispute between a student and a college, in which courts have declined to interfere. The Court of Appeals has concluded that "in the absence of demonstrated bad faith, arbitrariness, capriciousness, irrationality or a constitutional or statutory violation, a student's challenge to a particular grade or other academic determination relating to a genuine substantive evaluation of the student's academic capabilities, is beyond the scope of judicial review."(Matter of Susan M. v New York Law School, 76 NY2d 241, 247 [1990].) Furthermore, "institutional assessments of a student's academic performance, whether in the form of particular grades received or actions taken because a student has been judged to be scholastically deficient, [*7]necessarily involve academic determinations requiring the special expertise of educators." (Id. at 245.)

Additionally, Nursing 771 and Nursing 772 are required prerequisites for graduation from the PNP master's program at Lehman College. (Petitioner's exhibit 27.) The college has mandated that candidates will not be eligible to receive their degrees until these two courses are completed. This is an academic decision beyond the scope of judicial review. The decision to refuse admission to the Doctor of Nursing program because petitioner has not completed his master's degree is an academic decision beyond the scope of judicial review. These are academic decisions and in order "to preserve the integrity of the credentials conferred by educational institutions, the courts have long been reluctant to intervene in controversies involving purely academic determinations." (Matter of Susan M., 76 NY2d at 246.)IV.

Additionally, administrative decisions cannot be overturned on judicial review in an Article 78 proceeding unless the determination was "made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion." (CPLR7803.) In this case, petitioner fails to show that the decision to remove him from both Nursing 775 and Spanish 1002 was arbitrary and capricious. The record shows that petitioner was not eligible to be enrolled in either course and was thus appropriately removed from them.

According to Catherine Georges, Professor in the Department of Nursing at Lehman College, Nursing 775 is not part of the PNP master's program petitioner was enrolled in (Georges affidavit ¶15), and, he did not complete Nursing 771 or Nursing 772. Georges asserts that petitioner was participating in a program that was funded by a grant through the federal government and the grant cannot be billed for a course that is not required by his program. (Georges affidavit ¶17; see also Zucchetto affidavit exhibit A.) Because Nursing 775 is not required by the PNP curriculum, Professor Georges said she would not approve petitioner's registration in a course that is part of a different program than the one petitioner was accepted in. (Id.)

Spanish 1001 is a prerequisite for Spanish 1002, and petitioner was not eligible to enroll in Spanish 1002 first, because he had not completed the prerequisite, and second because he received a grade of F for Spanish 1001, thus failing the prerequisite. The determination CUNY made regarding petitioner's eligibility for these courses is an academic decision and therefore not reviewable.

The Court will not overturn administrative decisions of academic institutions, unless the petitioner demonstrates that such decisions were arbitrary and capricious. Petitioner has not met his burden of demonstrating here that the challenged decisions were arbitrary, capricious or contrary to law. As the Court of Appeals stated in Maas v Cornell University (94 NY2d 87, 92 [1999]), "case law reflects the policy that the administrative decisions of educational institutions involve the exercise of highly specialized professional judgment and these institutions are, for the most part, better suited to make relatively final decisions concerning wholly internal matters." The matters at issue here, being barred from courses petitioner is not enrolled in and denial of accommodations, are internal matters which will not be overturned by this Court.

V. [*8]

On September 27, 2010, petitioner met with the Office of Services for Students with Disabilities at Baruch College to request a reasonable accommodation for a purported disability, but did not provide the appropriate medical documentation to support his alleged disabilities. (Perez affidavit ¶¶4-5.) Petitioner is alleging that he has what CUNY would classify as a "mobility or orthopedic disability." (Petitioner's exhibit 23.) CUNY requires that an individual with this type of disability supply the Office of Disability Services with a current and relevant evaluation by a "qualified professional with the appropriate training in diagnosing physical disabilities" which includes "a diagnosis, a description of any functional limitations, and recommendations and rationale for accommodations and/or assistive technology." (Zucchetto affidavit exhibit F.) Such documentation is required by Baruch College in order to grant any application for a reasonable accommodation.

Raymond Perez, an Assistant Director of the Office of Services for Students with Disabilities at Baruch College, told petitioner to obtain the documentation and return to the Office of Services for Students with Disabilities at Baruch College; petitioner allegedly did not follow up with the office and thus was not granted any accommodation. (Perez affidavit ¶5.) On March 23, 2011, petitioner contacted the Office of Services for Students with Disabilities at Baruch College and left a message for Mr. Perez to return his call about a "504 grievance." Mr. Perez contacted petitioner and left a message for him, but petitioner did not return the call or make an appointment to meet with Mr. Perez regarding petitioner's alleged grievance. (Perez affidavit ¶6.)

Petitioner alleges that CUNY discriminated against him on the basis of his alleged disability because it has not granted him accommodations. Also, petitioner alleges that, without accommodations, he was therefore forced to write three 10 page papers in 72 hours so that he could complete Nursing 771. He alleges that the time given to complete the papers was unreasonable given his medical condition and that he would have earned a better grade had he been given up to one calendar year to complete the assignments, as the CUNY academic policy allows. (Petitioner's exhibit 17.) He successfully appealed his failing grade in Nursing 771, and it was changed back to the original INC. Petitioner also requested, however, that the INC be changed to a B, which he felt he would have earned had he been allowed more time to complete the papers. (Id.) His request for a grade of B in Nursing 771 was not granted, but he was given the full calendar year to convert his INC to a grade.

Section 504 of the Rehabilitation Act of 1973 (29 USC § 794[a]) states that "no otherwise qualified individual with a disability...shall solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." (St. Johnsbury Academy v D.H.,240 F3d 163, 173 [2d Cir 2001] quoting 29 USC § 794[a].) The Supreme Court of the United States defines an otherwise qualified person as "one who is able to meet all of a program's requirements in spite of his handicap." (Southeastern Community Coll. v Davis, 442 US 397, 406 [1979].)

Petitioner has not shown that the initial refusal of accommodations for his alleged disability violated Section 504 of the Rehabilitation Act. According to the CUNY Office of Student Disability Services policy, students are responsible for "obtaining and submitting proper documentation of their disability in accordance with CUNY Documentation Guidelines." [*9](Zucchetto exhibit F.) Additional documentation may be requested by the Office of Student Disability Services if the documentation provided is incomplete or inadequate and "insufficient documentation may result in the delay of services and accommodations." (Id.) Petitioner's request for accommodations at Baruch College due to his alleged total disability was denied because he did not provide adequate documentation. However, he was told to obtain proper documentation and return to the Office of Services for Students with Disabilities at Baruch College in order to discuss reasonable accommodation requests.

The decision not to grant reasonable accommodations because petitioner lacked adequate documentation complies with CUNY's accommodations policy for students with disabilities and with applicable federal case law construing Section 504. In Kaltenberger v Ohio College of Podiatric Medicine (162 F3d 432, 437 [CA 6 [Ohio 1998]) the Court of Appeals of the Sixth Circuit upheld documentation requirements for requests for reasonable accommodation. It stated that "the College was not obligated to provide accommodation until plaintiff had provided a proper diagnosis...and requested specific accommodation." Moreover, "[a]n educational institution is only required to provide accommodation under the ADA and the Rehabilitation Act when the plaintiff has a proper diagnosis and requested specific accommodation." (Manickavasagar v Virginia Commonwealth Univ. School of Medicine, 667 FSupp2d 635 [ED Va 2009].)

The United States Department of Education's Office of Civil Rights enforces Section 504 of the Rehabilitation Act. That office "has recommended that postsecondary institutions adopt policies and procedures for addressing student requests for accommodations." (McGuigan Documenting Learning Disabilities: Law Schools' Responsibility to Set Clear Guidelines, 36 J Coll. & Univ. Law 191, 221 [2009] citing Jo Ann Simon, Legal Issues in Serving Postsecondary Students with Disabilities, 21 Topics in Language Disorders 1, 6 [2001].) According to the United States Department of Education's Office of Civil Rights, "[A]n institution may make a reasonable request that the student provide sufficient supporting medical evidence as to the functional impact of the disability on the student's ability to meet the academic and technical standards requisite to the program or degree for which an adjustment or modification is sought." (Id. at 220, citing Oregon State Univ., OCR Case No 10-98-2071 at 11 [Feb. 25, 1999, letter ruling on file with author of journal article].) Furthermore, "a school may require documentation that includes: current diagnosis of disability; the date of the diagnosis; how the diagnosis was reached; the credentials of the professional; how [the] disability affects a major life activity; and how the disability affects...academic performance." (Id. at 221 citing OCR, Students with Disabilities Preparing for Postsecondary Education: Know Your Rights and Responsibilities 2 [2007], http://www.ed.gov/print/about/offices/list/ocr/transistion.html.) A university may "require a student requesting a reasonable accommodation to provide current documentation from a qualified professional concerning his learning disability." (Guckenberger v Boston Univ., 974 FSupp 106, 135 [DMass 1997].) Moreover, "individuals alleging a disability protected by the ADA [have] the burden of establishing with medical evidence the existence of the alleged disability.'" (Id., quoting Kalekiristos v CTF Hotel Management Corp., 958 FSupp 641, 657 [DDC 1997]; see also Halasz v University of New England, 816 FSupp 37, 46 [D Me 1993] stating that "[w]hen a university operates a program specifically for the handicapped, it clearly needs to know about an applicant's handicaps before it can make a [*10]decision about admission to the program.") Thus, CUNY did not violate Section 504 when it decided not to grant a reasonable accommodation to petitioner without sufficient documentation about petitioner's purported disability.

Additionally, CUNY has no obligation to change its grading policy or to confer degrees as accommodations for disabled students, as petitioner requests in his Order to Show Cause. According to the Supreme Court of the United States, "Section 504 imposes no requirement upon an educational institution to lower or to effect substantial modifications of standards to accommodate a handicapped person." (Davis, 442 US at 413.)

VI.

The balance of the relief petitioner is seeking is unavailable in an Article 78 proceeding. As shown above, petitioner seeks a broad range of remedies. Many of these remedies are unrelated to the petitioner's challenge of his INC grades in Nursing 771 and Nursing 772, his exclusion from Spanish 1002 and Nursing 775, and the denial of disability accommodations. Petitioner has not shown clear entitlement to the sorts of mandatory injunctive relief he seeks.

In this case, petitioner has not shown he is entitled to a judgment and the additional relief or that the remedies sought are closely related to the determination being challenged. For example, petitioner may not use a grade dispute to secure a faculty appointment or change the organizational structure of the institution. To the extent that the colleges may have internal

administrative review or appeal procedures available, petitioner may avail himself of those procedures should they be available to him.

CONCLUSION

For the forgoing reasons, it is ADJUDGED the petition is denied and the proceeding is dismissed.

ENTER

Dated: August 2, 2011

New York, NY/s /

J.S.C.