MEMORANDUM OF LAW IN SUPPORT OF THE PETITION, AND PETITIONER'S MOTION FOR A PRELIMINARY INJUNCTION

Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ONONDAGA x SCOTT McCONNELL, : Petitioner, : v. : Index No. LE MOYNE COLLEGE, : Respondent. : x MEMORANDUM OF LAW IN SUPPORT OF THE PETITION, AND PETITIONER'S MOTION FOR A PRELIMINARY INJUNCTION Raymond J. Dague, PLLC 620 Empire Building 472 South Salina Street Syracuse, NY (315) fax: (315) CENTER FOR INDIVIDUAL RIGHTS Michael E. Rosman TH ST. NW Suite 300 Washington, DC (202) fax: (202)

2 TABLE OF CONTENTS Factual Background... 1 Argument... 6 I. THE PETITION SHOULD BE GRANTED... 6 A. Decisions By Private Colleges Can Be Reviewed Under An "Abuse Of Discretion" Standard Or To Determine If The College Followed Its Own Rules... 7 B. The Facts Here Demonstrate That Le Moyne Failed To Follow Its Own Rules And Abused Its Discretion Petitioner Was A Fully-Matriculated Student Le Moyne Failed To Follow Its Own Rules Le Moyne Failed To Follow Minimal Standards Of Due Process Le Moyne's Decision Was Arbitrary And Capricious Le Moyne's Punishment Was Inappropriate II. PETITIONER'S MOTION FOR A PRELIMINARY INJUNCTION SHOULD BE GRANTED Conclusion... 16

3 Table of Authorities Cases Beers v. Incorporated Village of Floral Park, 691 N.Y.S.2d 546 (2d Dep't 1999) Beilis v. Albany Medical College, 525 N.Y.S.2d 932 (3d Dep't 1988)...9 Bennett v. Wells College, 641 N.Y.S.2d 929 (4th Dep't 1996)...5, 7, 9, 11, 12 Bennett v. Wells College, 641 N.Y.S.2d 929 (4th Dep't 1996)...* Christ The King Regional High School v. Catholic High Schools Athletic Ass'n, Diocese of Brooklyn, 624 N.Y.S.2d 755 (Sup. Ct. Queens Cty. 1995)...8 Extebank v. Finkelstein, 591 N.Y.S.2d 434 (2d Dep't 1992)...6 Gray v. Canisius College of Buffalo, 430 N.Y.S.2d 163 (3d Dep't 1980)...7, 8 Jordon v. Bates Advertising Holdings, 738 N.Y.S.2d 348 (1st Dep't 2002) Kwiatkowski v. Ithaca College, 368 N.Y.S.2d 973 (Sup. Ct. Tompkins County 1975)...9 Mary M. v. Clark, 460 N.Y.S.2d 424 (Sup. Ct. Cortland County 1983)...9 R.J. Valente Gravel, Inc. v. Town of Kinderhook, 673 N.Y.S.2d 265 (3d Dep't 1998)...5 Reynolds v. Mercy Hospital, 861 F. Supp. 214 (W.D.N.Y. 1994) Ryan v. Hofstra University, 324 N.Y.S.2d 964 (Sup. Ct. Nassau County 1971)...7, 10 Sackman v. Alfred University, 717 N.Y.S.2d 461 (Sup. Ct. Allegany Cty. 2000)...5, 8 Starishevky v. Hofstra University, 612 N.Y.S.2d 794 (Sup. Ct. Suffolk County 1994)...8 Tedeschi v. Wagner College, 49 N.Y.2d 652 (1980)...9 ii

4 Vanderbilt Museum v. American Ass'n of Museums, 449 N.Y.S.2d 399 (Sup. Ct. Suffolk Cty. 1982)...7, 8, 12 Statutes and Rules 28 U.S.C. 1367(d) U.S.C , 6 CPLR 205(a)...6 CPLR 7803(3)...1, 7 Other Authority "Joint Statement on Rights and Freedoms of Students" in American Association of University Professors, Policy Documents & Reports (1990) iii

5 Petitioner submits this memorandum of law in support of his verified petition, pursuant to CPLR 7803(3), seeking reinstatement as a student at Le Moyne College, and also in support of his motion for a preliminary injunction seeking reinstatement during the pendency of this action. Factual Background The complete factual background is described in the verified petition ("Pet."). Prior to graduating from State University of New York at Buffalo ("SUNY Buffalo") and receiving his Bachelor of Arts degree, Scott McConnell applied to the Le Moyne College Master of Science for Teachers program (the "Le Moyne Teachers Program"). Pet. 3. According to the college's online catalogue, there are five criteria used to evaluate a candidate's credentials for graduate education: 1. Completion of a baccalaureate degree from an accredited institution with a B average in the major field of study and a minimum grade point average of 3.0. If conditionally accepted, candidates with less than a 3.0 grade-point average must achieve at least a B in each of their courses prior to formal matriculation. 2. Graduate Record Exam General Test (GRE) score required. 3. Letters of recommendation stating that the student is capable of graduate study. 4. Candidate's statement of purpose. 5. Evaluation of transfer credit, if applicable. (Must have grade(s) of B or higher.) Pet. 7 & Ex. 1 at McConnell had not completed the first requirement because he had not yet graduated from SUNY Buffalo at the time that he applied. He provided the information set forth in the second, third, and fourth criteria for evaluation. The fifth criterion was inapplicable to him. Pet. 3, 8. Le Moyne conditionally accepted McConnell. The Le Moyne online catalogue describes the status of "Conditionally Matriculated" as "graduate students who have applied but not met all

6 entry requirements, and appear to have the capability to achieve full graduate status." Pet. 9 & Ex. 1 at 285. The acceptance letter, dated March 25, 2004, provided two conditions to full matriculation: "Upon earning a grade of `B' or higher in your first four courses, and upon completion of all admission requirements and/or course deficiencies, your status will change to full matriculation." Pet. 12 & Ex. 2. McConnell inquired concerning the "admission requirements and/or course deficiencies" and was told that this simply meant that he had to successfully complete his undergraduate course and receive his degree from SUNY Buffalo. Pet. 13. Le Moyne purports to follow share the ideals of academic freedom found in American institutions of higher education. Pet. 34 & Ex. 8 at 3. McConnell completed the conditions to full matriculation set out in the March 25 letter. He graduated from SUNY Buffalo in the spring of He completed his first and second semesters (which consisted of a total of 5 courses) and received a grade higher than a "B" in all of them. (In fact, he received one "A," three "A-"'s and one "B+.") Pet & Ex. 3. No one from Le Moyne ever suggested any additional requirements for full matriculation. Pet Indeed, at the end of the fall 2004 semester, a representative of the Education Office told McConnell that he had completed the conditions to full matriculation, and would be registered as a fully-matriculated student for spring 2005 classes. Pet. 20. In the fall of 2004, McConnell completed 64 hours of teaching in an elementary school in Syracuse. A Cooperating Teacher reviewed his classroom work and gave him uniformly excellent evaluations for every aspect of his teaching. Pet. 22 & Ex. 4. During the fall semester, McConnell completed an assignment for a course entitled Planning, Assessing, and Managing Inclusive Classrooms taught by Mark Trabucco. The 2

7 assignment required that he submit a classroom management plan. In completing that assignment, McConnell expressed his personal views concerning "multicultural education" and "corporal punishment." He stated that his classroom management philosophy was "based upon strong discipline and hard work," that he did not feel that "multicultural education" had a place in an American classroom, and that corporal punishment did have a place. He also stated that he would treat students equally, and require them to respect the teacher and one another; that he would deal with a student's individual needs when the need appears (such as moving a student having difficulty hearing closer to the teacher); and that he would work closely with parents by inviting them into the classroom and calling home on a monthly basis. Pet. 24 & Ex. 5. McConnell received an "A-" on the paper. Pet. 25 & Ex. 5. By letter dated January 13, 2005 from Cathy Leogrande, Chair of the Education Department at Le Moyne, Le Moyne precluded petitioner from continuing in the Le Moyne Teachers Program. The letter stated that Dr. Leogrande "ha[d] grave concerns regarding the mismatch between your personal beliefs regarding teaching and learning and the Le Moyne College program goals." No other explanation was provided in the letter. Pet & Ex. 6. On January 18, 2005, McConnell met with Leogrande. She told him that the views he expressed in the classroom assignment for Professor Trabucco's class were the basis for the January 13 letter. Pet. 31. After this matter received media attention, various public statements by Le Moyne officials concerning why they had suspended McConnell all confirmed this. Rosman Affirmation Exs A & B. On March 14, 2005, McConnell attempted to appeal the decision to expel him. In a letter dated March 30, 2005, Provost John Smarelli, Jr. stated that Dr. Leogrande's January 13, 2005 letter "constituted the College's final action." Pet & Ex. 7. 3

8 McConnell never received any of the procedural protections set forth in the Le Moyne Student Handbook that apply when the school seeks to punish students. Pet & Ex. 8 at Because his classes were in the evening, McConnell had worked as a substitute teacher in the Syracuse public school system during the day. His evaluations from that teaching experience were uniformly excellent. (As a consequence of Le Moyne's actions, however, the Syracuse school system suspended McConnell from the list of eligible substitute teachers for three weeks.) During that time, McConnell complied with all New York State laws concerning proper classroom management. In fact, McConnell has never even stated that he would violate the laws of New York State, or any other jurisdiction in which he was employed to teach, whether those states' laws were consistent with his personal philosophy or not. Pet The closest alternative teachers' program for McConnell would be has subsequently been admitted into a teacher's program at Buffalo State College. Because Buffalo State College is a significant distance from his home, completing the program will significantly burden him. Specifically, because Buffalo State is a 2½ hour drive from his home, he would have to live apart from his wife and pay for additional housing and living expenses. Pet Accordingly, he seeks reinstatement into the Le Moyne Teachers Program. Classes in both programs begin on August 29, Pet Procedural History McConnell commenced a hybrid action in New York State Supreme Court, Onondaga County on May 5, 2005, seeking reinstatement pursuant to Article 78 of the CPLR and damages against various officials at Le Moyne pursuant to 42 U.S.C. 1983, for violation of McConnell's First Amendment rights, and pursuant to various civil torts. McConnell v. Le Moyne College, et 4

9 1 al., Index No Defendants (including Le Moyne) subsequently removed the action to federal court, and moved to dismiss the claim for violation of 42 U.S.C On August 17, 2005, the federal court dismissed the Section 1983 action for failure to state a claim, and dismissed the state claims (including the claim for reinstatement) without prejudice. Pet. Ex. 9. The federal court specifically noted that the statute of limitations for those state claims had been tolled since May 5, 2005, and would continue to be tolled pursuant to 28 U.S.C. 1367(d). Accordingly, the court noted, "[petitioner] may still bring an action in state court based upon these remaining claims." Pet. Ex. 9 at 7 n The use of such hybrid actions is fairly common in New York state courts. R.J. Valente Gravel, Inc. v. Town of Kinderhook, 673 N.Y.S.2d 265, 267 (3d Dep't 1998) (article 78 proceeding to review a denial for a special use permit for a sand and gravel mine was properly joined pursuant to CPLR 601(a) with a claim for money damages that the town had overcharged the applicant for engineering fees allegedly associated with the town's review of the permit application; court grants summary judgment on claim for money damages); Beers v. Incorporated Village of Floral Park, 691 N.Y.S.2d 546, 548 (2d Dep't 1999) (reversing dismissal of Article 78 proceeding against village and Section 1983 action for damages against public Library, both based upon library clerk's claim that she was terminated without a hearing); Bennett v. Wells College, 641 N.Y.S.2d 929, 931 (4th Dep't 1996) (hybrid article 78 proceeding combined with causes of action for damages based upon breach of contract and fraudulent misrepresentation); Sackman v. Alfred University, 717 N.Y.S.2d 461, 462 (Sup. Ct. Allegany Cty. 2000) (combined Article 78 proceeding and action under CPLR 3001 seeking, inter alia, a declaration that Alfred University breached contract with professor and a damages award of $ 800,000). 2 The court suggested that the statute of limitations would be tolled for thirty days pursuant to 28 U.S.C. 1367(d). Although it is of no moment here, since petitioner brings this action only a few short days after the federal court dismissal, Section 1367(d) actually would defer to the longer tolling provision of CPLR 205(a). E.g., Reynolds v. Mercy Hospital, 861 F. Supp. 214, 225 (W.D.N.Y. 1994) ("N.Y. CPLR 205(a) applies when a pendent claim is dismissed from federal court for lack of subject matter jurisdiction"); Jordon v. Bates Advertising Holdings, 738 N.Y.S.2d 348, 350 (1st Dep't 2002) (tolling provision of CPLR 205(a) applicable where federal court "explicitly dismissed the State sex and disability discrimination claims without prejudice"); Extebank v. Finkelstein, 591 N.Y.S.2d 434, 435 (2d Dep't 1992) (where federal court dismissed pendent state law claims without prejudice, "plaintiff was entitled to commence this action in State court within six month after the Federal action was terminated"). 5

10 Argument II. THE PETITION SHOULD BE GRANTED The petition alleges that Le Moyne's dismissal of petitioner from the Le Moyne Teachers Program was "made in violation of lawful procedure" and/or was "arbitrary and capricious or an abuse of discretion," including "abuse of discretion as to the measure or mode of penalty or discipline imposed." CPLR 7803(3). As shown below, the facts concerning Le Moyne's decision to preclude petitioner from continuing in the Le Moyne College Teachers Program are not seriously in dispute. Accordingly, this Court should grant the petition, and Le Moyne should be ordered to reinstate petitioner. A. Decisions By Private Colleges Can Be Reviewed Under An "Abuse Of Discretion" Standard Or To Determine If The College Followed Its Own Rules It is well-established that courts may review the actions of private colleges and other institutions in New York. Bennett v. Wells College, 641 N.Y.S.2d 929, 932 (4th Dep't 1996) (decision to grant tenure at private college was "not entirely beyond judicial scrutiny" and Court order de novo hearing for faculty member denied tenure); Gray v. Canisius College of Buffalo, 430 N.Y.S.2d 163, 166 (4th Dep't 1980) ("Historically, a writ of mandamus has been made applicable to corporations, both public and private, because these institutions are creations of the government and `a supervisory or visitorial power is always impliedly reserved to see that corporations act agreeably to the end of the institution, that they keep within the limits of their lawful powers, and to correct and punish abuses of their franchises'" (internal citation omitted)); Vanderbilt Museum v. American Ass'n of Museums, 449 N.Y.S.2d 399, 404 (Sup. Ct. Suffolk Cty. 1982) ("an Article 78 proceeding is proper where a private non-profit organization has 6

11 incorporated"); Ryan v. Hofstra University, 324 N.Y.S.2d 964, 973 (Sup. Ct. Nassau County 1971) ("The authorities at all levels are consistent that a student may not be arbitrarily expelled from a `private' university"). While private institutions have some discretion in ordering their own affairs, their actions cannot be arbitrary or capricious, and they cannot ignore their own procedures for making decisions. Gray v. Canisius College, 430 N.Y.S.2d at (overturning decision terminating professor from college; "if the college or university makes its determination not in the exercise of its sound and honest discretion but rather in bad faith or in a manner which is arbitrary and capricious, this action `could never receive the sanction of a court in which even the semblance of justice was attempted to be administered'"); Christ The King Regional High School v. Catholic High Schools Athletic Ass'n, Diocese of Brooklyn, 624 N.Y.S.2d 755, 756 (Sup. Ct. Queens Cty. 1995) (reviewing and overturning decision of Catholic high school athletic association to preclude team from playing in the playoffs; "private educational organizations may to a large extent order their own affairs; but, at the very least their conduct may not be arbitrary or capricious or violative of the applicable constitutions, by-laws, or regulations"); Sackman v. Alfred University, 717 N.Y.S.2d 461, 465 (Sup. Ct. Allegany Cty. 2000) (overturning decision denying tenure because "Alfred University violated its own tenure policy in an arbitrary and capricious manner by making an evaluation of [professor] which included only one classroom visit by the Chairperson [to assess teaching ability]"). Even where the private entity has followed its own procedures, the procedures must still meet basic notions of fair play, viz., "notice and opportunity to be heard." Vanderbilt Museum, 449 N.Y.S.2d at 407. See also Starishevky v. Hofstra University, 612 N.Y.S.2d 794, 800 (Sup. Ct. Suffolk County 1994) ("Whether viewed under New York law or federal law it was incumbent upon Hofstra to afford [professor accused of sexual harassment] a fundamentally fair and reasonable hearing"); id. at 801 (where inquiry of sexual harassment board went beyond, and deviated from, what notice to professor had said would be its inquiry, "[t]hese defects in 7

12 procedure, coupled with others previously noted, are so egregious as to infect the entire proceeding with unfairness... of such a magnitude as to have led to substantial prejudice... and a denial of justice..., that the hearing process can be seen as nothing but fundamentally unfair and pursued in bad faith"); Kwiatkowski v. Ithaca College, 368 N.Y.S.2d 973, 977 (Sup. Ct. Tompkins County 1975) ("it is imperative that the college or university's decision to discipline the student be predicated on procedures which are fair and reasonable and which lend themselves to a reliable determination"). Indeed, even in matters of academic standards, where courts are most reluctant to substitute their judgment for the school's, decisions are reviewed to determine "whether the institution has acted in good faith or its action was arbitrary or irrational." Tedeschi v. Wagner College, 49 N.Y.2d 652, 658 (1980); Bennett v. Wells College, 641 N.Y.S.2d at 932 (tenure decision by private college could be reviewed to determine if it followed its own rules for granting tenure). Where suspension or expulsion is unrelated to academic achievement, courts have looked more closely at the actions of educational institutions. Tedeschi, 49 N.Y.2d at 658. See also Mary M. v. Clark, 460 N.Y.S.2d 424, 426 (Sup. Ct. Cortland County 1983) (a proceeding which resulted in findings of guilt for plagiarism and cheating "was disciplinary in nature, not academic"). In matters of punishment, courts will review the punishment to determine if it is disproportionate to the offense. Beilis v. Albany Medical College of Union University, 525 N.Y.S.2d 932, 932 (3d Dep't 1988) (one-year forced leave of absence for cheating upheld because it was "not disproportionate to the offense of cheating nor shocking to one's sense of fairness"); Ryan v. Hofstra University, 324 N.Y.S.2d at (Hofstra acted improperly and arbitrarily in that it "went to the most extreme penalty available to it, total expulsion from the school, `permanent and complete'" in imposing punishment for student allegedly having thrown 8

13 rocks through windows on three occasions). B. The Facts Here Demonstrate That Le Moyne Failed To Follow Its Own Rules And Abused Its Discretion The facts set forth in the "Factual Background" section, which is largely based upon undisputed documentary evidence, demonstrate that petitioner is entitled to the relief he seeks because respondent Le Moyne College acted arbitrarily and capriciously, and in violation of its own rules. 1. Petitioner Was A Fully-Matriculated Student. -- Le Moyne's primary argument appears to be that petitioner was not a fully-matriculated student and, accordingly, is not protected from arbitrary and capricious decisions and has no right to have rules followed. This argument is false in both premise and conclusion. As shown above (see supra at 1), Le Moyne itself lists the criteria that it will consider for admission. Nowhere in that list is "personal views stated in classroom assignments after conditional matriculation." The only criteria that McConnell did not meet was the first condition, relating to completion of a baccalaureate degree, and the attaining of certain grades if admission was conditional. His letter of conditional acceptance also made no mention of him needing to avoid a discussion of personal views in order to be fully matriculated. Rather, it mentioned only "admissions requirements and/or course deficiencies" (which Le Moyne explained as graduating from SUNY Buffalo) and earning a "B" or higher in his first four courses. McConnell completed both conditions, and was, in fact told by Le Moyne that he would be a fully-matriculated student. Both the conditions explicitly set forth in his acceptance letter, and various conversations petitioner had with Le Moyne officials, confirmed that McConnell completed the only conditions 9

14 that Le Moyne had for full matriculation. Accordingly, McConnell was a full-time matriculated student by any account, and Le Moyne's refusal to allow him to continue his studies must be considered an expulsion. Even if he were not a fully-matriculated student, and Le Moyne's decision were not an expulsion, Le Moyne specifically identified the criteria that it would consider for admission, and its failure to follow its own rules for making those decisions would be sufficient to grant the petition. E.g., Bennett v. Wells College, 641 N.Y.S.2d at 933 (where college based tenure decision largely on low enrollment in department where professor taught, court grants article 78 claim because "[s]tudent enrollment... is not among the enumerated criteria in the Faculty Manual [for determining tenure decisions]"). 2. Le Moyne Failed To Follow Its Own Rules. -- Le Moyne's Student Handbook (Pet. Ex. 8) contains a set of rules that Le Moyne has adopted to govern suspensions and dismissals. Le Moyne concededly did not follow any of these rules, presumably based upon its erroneous belief that it did not have to. The failure to follow its own rules would be a sufficient basis for this court to vacate Le Moyne's decision to expel petitioner and require it to commence a proceeding consistent with its own rules if it insists upon pursuing its inexplicable vendetta against petitioner. Bennett v. Wells College, 641 N.Y.S.2d at 932 (lower court properly ordered de novo tenure review for college's failure to follow its own review in denying professor tenure). But since, as shown below, Le Moyne's decision was also arbitrary and capricious, this Court may simply vacate its decision and order Le Moyne to reinstate petitioner. 3. Le Moyne Failed To Follow Minimal Standards Of Due Process. -- As shown above, even if Le Moyne had followed its own rules, it would still have been obligated to provide some minimal due process to McConnell. Vanderbilt Museum, 449 N.Y.S.2d at 407. Here, Le Moyne gave petitioner no opportunity at all to defend himself before deciding to terminate his 10

15 participation in the Le Moyne College Teachers Program. 4. Le Moyne's Decision Was Arbitrary And Capricious. -- As shown above (and as cannot be disputed), McConnell has never even suggested that he would not comply with all laws of any jurisdiction in which he was hired to teach, and he has, in fact, successfully taught in New York without incident. Le Moyne's decision to expel him, then, was based on his personal views concerning the best classroom management techniques. This is arbitrary and capricious. Fundamental rules of academic freedom, as set forth in a variety of sources -- including, and particularly, Le Moyne's own student handbook (Pet. Ex. 8 at 3) -- permit students to express individual views, even views inconsistent with orthodox or mainstream views. See also, e.g., "Joint Statement on Rights and Freedoms of Students" in American Association of University Professors, Policy Documents & Reports 154 (1990) (available online at Paragraph II.A of that Joint Statement stated: Students should be free to take reasoned exception to the data or views offered in any course of study and to reserve judgment about matters of opinion, but they are responsible for learning the content of any course of student for which they are enrolled. Paragraph II.B of the Joint Statement states that [s]tudents should have protection through orderly procedures against prejudiced or capricious academic evaluation. At the same time, they are responsible for maintaining standards of academic performance established for each course in which they are enrolled (emphasis added). Paragraph III.B provides students with protections against professors' disclosure of student views learned through the classroom: 11

16 Information about student views, beliefs, and political associations which professors acquire in the course of their work as instructors, advisers, and counselors should be considered confidential. Protection against improper disclosure is a serious professional obligation. Judgments of ability and character may be provided under appropriate circumstances, normally with the knowledge or consent of the student. If Le Moyne chooses to ignore these principles of academic freedom, and instead require students to quell any independent thoughts that might flash through their brains, then, at the very least, it should give notice to its students that they cannot express views inconsistent with Le Moyne's views on identified topics, and then set forth Le Moyne's official views on those topics. See Joint Statement, Part VI.A: The institution has an obligation to clarify those standards which it considers essential to its educational mission and its community life. These general behavioral expectations and the resultant specific regulations should represent a reasonable regulation of student conduct, but students should be as free as possible from imposed limitations that have no direct relevance to their education. Offenses should be as clearly defined as possible and interpreted in a manner consistent with the aforementioned principles of relevancy and reasonableness. Disciplinary proceedings should be instituted only for violations of standards of conduct formulated with significant student participation and published in advance through such means as a student handbook or a generally available body of institutional regulations. 5. Le Moyne's Punishment Was Inappropriate. -- Finally, even if Le Moyne's decision to punish petitioner for his personal views were not itself arbitrary and capricious, the punishment itself is also disproportionate and shocks a basic sense of fairness. Stating one's point of view about proper classroom management -- even if that view is inconsistent with Le Moyne's views or even the official views of the State of New York -- should not result in a student's dismissal from college. The Le Moyne Teachers Program is, after all, supposed to teach and train its students. Assuming arguendo that that includes training them to adopt mainstream views on controversial topics, should it not have devised some kind of punishment that would 12

17 impress upon petitioner the importance of the principles that it believes is embodied in New York's law? III. PETITIONER'S MOTION FOR A PRELIMINARY INJUNCTION SHOULD BE GRANTED Petitioner has also moved for a preliminary injunction pending the resolution of this special proceeding. Even if there were disputed facts with respect to the petition, the foregoing demonstrates that petitioner is likely to win on the merits of his claim. Moreover, petitioner will suffer irreparable injury if he is not permitted to attend classes at the Le Moyne Teachers Program this fall. He will be forced to take classes at Buffalo State College, which is approximately 2½ hours away by car, which would force him to undergo many long trips, be separated from his wife, and pay for additional housing close to Buffalo State. Further, the burdens would be difficult to quantify and measure in money damages. This is the very definition of the "irreparable injury" needed to justify a preliminary injunction. Furthermore, the balance of equities favors petitioner as well. Le Moyne would not undergo any great hardship in permitting petitioner to attend classes while this proceeding is being resolved. Assuming arguendo that Le Moyne has a legitimate interest in making sure that students conform to some preferred mode of thought, that interest can be pursued by whatever process of indoctrination and persuasion it deems appropriate, provided it gives students fair notice of its goals and the consequences of failing to conform. Moreover, since a special proceeding is expeditious, any burden suffered by Le Moyne would be short-lived. It would only be obligated to permit McConnell in its classes for the weeks this proceeding is pending. Finally, petitioner has moved expeditiously after dismissal of his state claims (including 13

18 the claim for equitable reinstatement) by the federal court on August 17,

19 Conclusion For the foregoing reasons, the petition should be granted and petitioner's motion for a preliminary injunction should be granted. Dated: August 19, 2005 Respectfully submitted, Michael E. Rosman CENTER FOR INDIVIDUAL RIGHTS TH ST. NW Suite 300 Washington, DC (202) Fax: (202) Raymond J. Dague, PLLC 620 Empire Building 472 South Salina Street Syracuse, NY (315) fax: (315) Attorneys For Petitioner 15