For Student Discipline for COVID, Notice and Consistency are Key

On October 21, 2020, a New York state trial court judge delivered a significant decision involving the enforcement of COVID-19 restrictions in colleges and universities. In the Santonocito v. New York University, the court found that a private university that fails to give adequate notice to students about conduct for which students can be disciplined in light of the COVID-19 crisis may not be able to enforce those policies against students. Schools, colleges, and universities across the country should take notice of this decision. Providing concise and advance notice of conduct that violates COVID-19 restrictions is essential, particularly if educational institutions plan to impose relatively serious sanctions such as suspension or probation.

The case involved disciplinary actions taken against three track and field students for violations of NYU’s COVID-19 policies. In late August, social media images were posted online showing each of the students gathered at private, off-campus, and outdoor events. According to NYU, that conduct violated its code of conduct, and specifically provisions regarding the health, safety, and welfare of the school population. The school identified the gatherings as large gatherings at which the students did not properly wear masks or maintain social distancing. 

The students argued that their attendance at the events did not violate school rules because NYU did not provide them notice that failing to properly social distance at private, off-campus gatherings of people within their social bubble was subject to discipline, let alone suspension. Nonetheless, NYU found the students violated school policies, suspended the students and placed them on probation, and denied their appeal. The students filed a lawsuit in New York state court challenging the University’s decision.

The Court agreed with the students regarding notice. The Court reviewed four notices and communications distributed to the school population and parents between July 30, 2020 and August 14, 2020. The Court found that each notice referenced the academic school year, and at no point were students or their parents notified that the policies were intended to regulate activities during the summer months. In fact, the Court noted that it was “undisputed” that the students were not aware that the policies pertained to the summer months because no communication stated that policies were to be enforced immediately. Students were not given pre-conduct notice.

Only after disciplining the track athletes did NYU distribute a fifth communication to the student body specifically stating that off-campus events were subject to sanctions. The Court noted that the latter communication could be viewed as acknowledging the insufficiency of prior communications. Interestingly, the Court noted that the University’s arguments and evidence were favorable to the school’s position and the University would have prevailed—including regarding arguments that the sanctions imposed were too harsh—if it had provided proper pre-conduct notice.

This case provides the following useful takeaways for schools, colleges, and universities wishing to balance the fight against COVID-19 with student discipline rights:

• Clarify Physical Jurisdiction – Clearly note in policies and procedures whether coronavirus restrictions cover off campus conduct.
• Notify Students of When Rules are in Effect – This case hinged on the fact that students were not notified of when the policies took effect. Ensure that communications are clear and unambiguous as to when the policies take effect.
• Follow Procedures – After notifying students of the potential for disciplinary action, properly follow all institutional policies to avoid making decisions that could be found to be unreasonable or arbitrary.

For more information on this or other COVID-19 disciplinary matters, contact the authors of this post or any other Franczek attorney.