(New Paltz)-On Friday, August 11, 2006, the Honorable Lawrence Kahn, United States District Judge for the Northern District of New York [in Albany] signed an Order requiring SUNY New Paltz and four of its agents, including President Poskanzer, to show cause why the Court should not issue a preliminary injunction allowing two student leaders, Justin Holmes and R.J. Partington III, to return to school this fall. This followed the late July affirmance by a subordinate college employee of a judicial committee’s decision [by a 2-1 majority] to suspend Holmes, New Paltz’s student government president, and to reduce Partington’s proposed expulsion to a suspension of unspecified date.
On August 15, 2006, Judge Kahn heard about 40 minutes of argument on the students’ application for a preliminary injunction. Michael Sussman argued for the students and Lisa Ullman, Esq., an Assistant Attorney General, appeared for all the defendants. Ms. Ullman initially claimed that the court lacked jurisdiction because plaintiffs had failed to personally serve all the defendants by noon Saturday, the time specified by Judge Kahn at 3:40 p.m. on Friday in signing the order to show cause. Sussman responded that College President Poskanzer was out of town on vacation on Friday and Saturday, that three attempts to serve him were made at his home, that he was not present and that, thereafter, the legal papers were nailed to his residence and mailed thereto. Sussman also explained that the students next sought to serve defendant L. David Rooney, Vice President for Academic Affairs. During the short time period for service, he, too, was not at his office or his home and after five visits to his residence, service was made by nailing and mailing. In a further effort to serve the College, a process server sought to find the College Provost, who resides in Rhinebecn. He was also not available during the brief window the court made available for service. Sussman further explained that the process server had served defendant Raskin, one of the members of the judicial committee, but had to serve Professor Zuckerman by nail and mail since he, too, was unavailable. Sussman also explained that his office faxed the papers to the Attorney General’s Office in Albany on Friday early evening and over--night mailed the papers to that office.
Judge Kahn next directed the argument to the merits: Sussman argued that the college and the named defendants denied both students fundamental due process rights by failing to allow them to use an attorney during the disciplinary hearings and by failing to allow them to cross-examine witnesses. He explained that concurrent with the judicial proceedings on campus, the school had pressed criminal charges against both plaintiffs and that case law suggested a strong right to counsel in such a situation. Likewise, the ability to cross-examine witnesses, also denied here, lies at the heart of the adversarial process, particularly when sharp credibility disputes exist. Sussman next submitted that the plaintiffs had been persecuted, singled out for hard treatment and ultimately suspended because of their First-Amednment protected speech and activity. He explained that the administrator who claimed that plaintiffs harassed her was, in fact, seeking to avenge the students’ credible accusations that she had interfered against them in the recently concluded student election, contrary to campus regulations. Finally, Sussman, submitted that by suspending them for one year, violating their First Amendment and due process rights and denying them this unique chance to serve in leadership positions at the college, defendants were irreparably harming the students.
Ms. Oilman responded that the university afforded the students all the due process to which they were entitled, that the allegation of retaliation for protected activity and speech was “tenuous” and speculative and that suspending the students for one year did not irreparably harm them, but, rather provided them a wanted vacation and another issue with which to attack the university.
The court provided each side with one week to make additional submissions and took the matter under advisement.
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