This is part two of a blog series detailing the saga of Katie Kickertz, an expelled New York University (NYU) College of Dentistry student. Part one can be found here, and her recent court victory can be found here: In re Katie Kickertz v. New York University, 952 N.Y.S.2d 147 (N.Y. App. Div. 2012).
You can and should read part one for a more detailed account of the ridiculous situation in which Kickertz found herself in May 2009. Briefly, 15 minutes before graduation, Kickertz was alerted that she was deficient by about 2,000 dollars in a clinical income-generation requirement called the Practice Model Values (PMV). After much hemming and hawing she was allegedly instructed to pay the money out-of-pocket and attribute the payment to clinical work. It is not in dispute that Kickertz did so, which NYU seized on as independent grounds for expelling her. She was promptly accused of falsification of records and expelled.
Today, I will document Kickertz’s disciplinary proceedings as reported in her recent court victory, which vacated her expulsion (small comfort, since in the intervening two years Kickertz had to earn replacement bachelor’s and dental degrees, which cost her a pretty penny).
Even after paying out-of-pocket, Kickertz went back to NYU and completed the remaining PMV. On July 16, 2009, more than a month after she completed her PMV requirement by returning to the clinic to treat patients, and over a month and a half following her graduation ceremony, Kickertz received a letter from NYU notifying her that a Peer-Review Board (PRB), consisting solely of students, had convened pursuant to the NYU "Code of Ethics and Professional Conduct, Peer Review Board Proposal FINAL 2.6.09" (the 2009 Code). The letter informed Kickertz:
[T]he [PRB] convened and, based upon the report of its Investigation Panel, determined that you made a fraudulent entry in a patient’s chart and, in addition, forged fraudulent treatment records for multiple patients. Based upon this finding, the [PRB] has recommended that you be dismissed from the College
The letter also informed Kickertz that the College Review Board (CRB), consisting of three faculty members, determined that the PRB "investigation was thorough and the sanction reasonable and appropriate." In plain English, students had investigated and made a determination without Kickertz’s input, and three faculty members had just informed Kickertz that everyone believed she should be expelled. This was the first notice Kickertz received that she was accused of misconduct. The investigation had been done; the process was essentially over. All NYU needed to do was rubber-stamp the expulsion.
Remember: Kickertz alleges that the underlying charges themselves were bogus. She claims she had been informed by her supervisor that to meet the revenue-generation requirement, she needed to pay out-of-pocket and attribute the payment to clinic work. Backing up this claim is Kickertz’s cash and credit payment to NYU in the exact amount of her PMV shortfall. Furthermore, as the appeals court in her case noted, NYU has to date not produced the actual "falsified" patient charts in any court hearing or during any internal disciplinary hearing. Thus, the factual basis for NYU’s misconduct claims against Kickertz is lacking, and had she been able to defend herself she might have been exonerated on the merits.
Instead, she was investigated and tried in absentia, with no notice or opportunity to be heard. All that was left was sentencing, and on October 7, 2009, the PRB voted unanimously to expel Kickertz with no possibility for reinstatement, and the CRB upheld the decision. Kickertz appealed to the Dean of the School of Dentistry on the grounds that her supervisor was "negligent in the administration of his responsibilities, failed to complete the required Progress Reports, and ha[d] repeatedly lied and defamed [her] during the [PRB] process," and that the "hearing was conducted without due process and in violation of the [2005 Code]." The Dean, however, upheld her expulsion.
There is some debate as to under which student code of ethics Kickertz ought to have been tried. Kickertz claims that the 2005 Code was applicable to her expulsion process; NYU claims that the 2009 Code was. Certainly it would be strange to expel a student under a Code of Ethics changed in the middle of her graduating semester. Ultimately, the appeals court held that under either the 2005 or the 2009 Code, NYU wronged Kickertz:
- Under the 2005 Code, the PRB and Investigating Panel ought to have been composed of faculty and students; under the 2009 Code and in Kickertz’s case, both were solely composed of students. As Kickertz’s faculty advisor contended, a panel consisting solely of students is "much more susceptible to influence from the Dean and administration of the college of dentistry. Faculty, having tenure, are far more independent and objective in such matters." And, as her advisor also noted, in a meeting with the Dean, the Dean "made it abundantly clear that no matter what the PRB decided, the Deans could send the decision back until they got the holding that they desired."
- Under the 2005 Code, Kickertz would have been allowed outside counsel in her hearings; under the 2009 Code, Kickertz was only allowed an advisor from NYU. She chose Dr. Eric Ploumis. However, the right to have Dr. Ploumis as advisor was rather laughable, since Dr. Ploumis was muzzled, and the Dean "threatened that, were [Ploumis] to interject or participate in any other way [besides advising petitioner], [he] would be removed from the hearing and [petitioner] would have to proceed alone." It would certainly appear the advisor was there simply to give the façade of a fair hearing without actually doing anything.
- NYU refused to provide Kickertz with contact information for witnesses, even the primary witness, Dr. Meeker, who had since left NYU. NYU also refused to allow several witnesses to attend the hearing whose testimony formed the case against Kickertz.
Thus, as the appeals court ruled: "These facts, fully set forth in the record, establish that NYU did not substantially comply with its own published guidelines and policies, whether judged under the 2005 Code or the 2009 Code. In violation of both codes, petitioner was not afforded substantial justice. Significantly, among other things, she was not given a fair opportunity to cross-examine her accusers, and key procedural rulings were made and/or influenced by [the Dean]." [Emphases added.]
The appeals court also held that expulsion without possibility of readmission was a disproportionate punishment for Kickertz’s alleged offense. The punishment was the worst available punishment for a simple lapse in judgment—a lapse that might have been induced by her supervisor and that did not call into question her academic capabilities. As Dr. Ploumis noted: "The entire student body [was] aware of, and aghast at, the punishment. Every student and graduate [interviewed] has indicated that, given a similar set of facts and conditions, he or she could envision acting similarly in a moment of panic." Finally, other students had done worse and been treated more leniently.
So just to detail the due process offenses against Kickertz: (1) post hoc notice that she was accused; (2) investigation and conviction in absentia; (3) no right to counsel at her sentencing, and her NYU advisor was not allowed to fully participate; (4) no right to call rebuttal witnesses; (5) application of a student code promulgated in the middle of her final semester; (6) summary pronouncements by the Dean, as well as statements calling into question his influence on allegedly impartial decisions; and (7) a disproportionate punishment, that, as the appellate court noted, "shocks one’s sense of fairness."
So where does this case leave students deprived of due process at private universities in New York State? Plainly, if your university promises you certain procedures and fails to follow them, or if they meddle with "independent" procedures, or if they mete out punishment far greater than the crime—if your university does any of this, you have grounds for a lawsuit. It is true that the facts in the Kickertz case are particularly egregious, involving bad judgment by university administrators at every stage. However, the principles of "substantial justice" and compliance with one’s own published guidelines are widely applicable.
Not each student unfairly expelled can afford legal representation or earn a replacement degree while her lawsuit is pending. In those respects, Katie Kickertz is lucky. Because of that, we at FIRE know it is crucial that university administrators take seriously the rights of their students before it gets to the point where legal action is necessary.
Schools: New York University