Today, when I attend meetings and speak with colleagues, one topic that often comes up is the character of today’s younger practitioners. Some observations concern competency. I often hear that dental school graduates today seem to come out learning less than what they learned years ago, that these graduates are not as prepared, that their ethical tenor is less than desired, that the degree of “gradeflation” is absurd, and so on. Obviously, this does not apply to most graduates, but it applies to enough to cause concern among many elders in our clan. As I read the case below, I couldn’t help but be brought back to a number of conversations and, if truth be told, to a number of personal encounters and situations that echoed these concerns. I caution all readers that I’m not painting with a broad brush but, rather, expressing concerns espoused by some about a few who unfortunately cause a certain reflection to be cast across many.

The plaintiff in this case, Powers v. St. John’s University School of Law , NY Slip Op 02799 (NY Ct. App. 4/2/15), applied to law school. One question on the application read, “Have you ever been charged with, pleaded guilty to, or been found guilty of any crime, offense, or violation (other than a minor traffic violation), or is any such action pending or expected to be brought against you? If yes, please explain in a supplementary statement or electronic attachment the relevant facts, including the nature of the offense, the dates and courts involved, and the penalty imposed, if any. Note: Although a conviction may have been sealed or expunged from the record by an order of the court, it nevertheless should be disclosed in answer to this question.”

The plaintiff wrote a 3-page explanation about having used drugs and having been stopped by the police; he pleaded guilty to possession, underwent rehabilitation, and completed a period of probation. Although all of this was true, he did not disclose that he was also charged with possession of a number of drugs with intent to distribute, possession of drug paraphernalia, and other less minor charges. In short, he disclosed what he convicted of but not everything he was charged with.

Regardless, he was admitted to law school and was by all accounts a decent and successful student. Three semesters into his degree program and while studying abroad on a leave of absence, he planned to seek an advance ruling from the Character and Fitness Committee of the New York Bar regarding his future application for entrance to the bar, so he wrote to the dean of his law school asking whether he could receive a letter of support in the future. In his request for the letter of recommendation, he disclosed the charges that were not disclosed in his law school application. The dean responded that since he did not disclose this information in his original application, a letter of support would not be forthcoming. As things progressed, the school advised the student that it was considering whether some type of disciplinary action was required because of the omissions in his original application; one option was rescission of his admission. The student responded that when he applied, he had consulted with an attorney who advised him that his disclosures were sufficient, and that everything he disclosed was truthful. He was then offered the option of amending his application but decided that his original disclosures were absolutely truthful, and that nothing more needed to be disclosed. The school subsequently rescinded his admission, resulting in this lawsuit.

In its decision, the appellate court noted that courts generally have a limited or restricted role when they review determinations of institutions of higher education, particularly when they deal with academic and administrative aspects as opposed to disciplinary ones. A university’s findings “will not be disturbed unless a school acts arbitrarily and not in the exercise of its honest discretion, it fails to abide by its own rules or imposes a penalty so excessive that it shocks one’s sense of fairness.”

The school, it seems, had an unwritten policy that although it might admit students who have used or possessed drugs, it did not accept students who sell them. The court noted that schools are allowed such honest policies of discretion. As to the informality of the policy, the court noted that

It is not necessary that the policy be in writing for the school to apply the policy. It would be untenable for courts to require that every factor that is taken into consideration during the admission process be reduced to writing. Further, the law school’s response to [the plaintiff’s] belated disclosure was not arbitrary or capricious, given that [he] was on notice, based on the electronic certification that he submitted with his application, that the failure to provide truthful answers to the questions could result in denial of admission, dismissal, or rescission of an awarded degree from the school.

In addition, the court found that the school did not fail to follow its own rules and procedures as claimed by the plaintiff according to the guidelines in the student handbook. The court noted that those guidelines related to academic issues and did not apply to preadmission concerns. Lastly, the court addressed the issue of whether the penalty was disproportionate to the misconduct so as to shock one’s conscience. The application itself alerted the applicant about the potential consequences for not fully disclosing the requested information. The rescission was upheld.