WHITE PLAINS, NY (September 3, 2022) – A judge has ruled in favor of a rising high school student at a private school in New Rochelle who was expelled two years ago for a TikTok video she made with two friends at the school cafeteria.
Why is this important: The applicable standard governing private schools is whether the disciplinary sanction was arbitrary and capricious – a hugely deferential standard – but Judge Torrent ruled that the plaintiff had established “a likelihood of success on the merits”.
Westchester Supreme Court Associate Justice Damaris E. Torrent ordered the Ursuline School of New Rochelle to reinstate plaintiff EP as a student in good standing on August 23. Ursuline appealed to a higher court the following day.
The highlight: Justice Torrent concluded “unless this Court grants a remedy, an expelled high school student will be forced to attempt to find a private school to accept her on the eve of the start of the school year” adding “it is certainly irrational to punish a student with expulsion for conduct regularly exercised by other students without similar repercussions”.
The order directed the school to “conduct any further disciplinary proceedings against him and to order the defendant to immediately allow him to return to school and register for the 2022-23 school year and to allow immediate access to his school email account and college applications, and otherwise resume all regular activities in good standing” and prohibited the school from “keeping an expulsion record without further court order or otherwise enforce his deportation of the plaintiff”.
The preliminary injunction issued in the Decision and Order of April 22, 2022 is therefore modified and will remain in force until further order of the Court. The recognizance ordered in the decision and order of April 22, 2022 will also remain in effect until further order of the Court.
Timeline and order of Judge Torrent:
September 28, 2021: Plaintiff filed a similar request for an injunction on or about, after Defendant informed Plaintiff that she had been expelled from school for certain conduct that Defendant alleges violates the mission and values of the school and the provisions of the applicable student/parent handbook
September 30, 2021: Judge James W. Hubert granted plaintiff’s request for a TRO
April 22, 2022: TRO was replaced by a preliminary injunction, under which the plaintiff remained enrolled in school during the 2021-2022 school year
July 2022: the defense attorney informed the plaintiff’s attorney by letter that the preliminary injunction had expired and that the plaintiff was therefore no longer a student of the school
July 26, 2022: the claim was made by a draft show cause order
August 19, 2022: After the recusal and reassignment, this Court was informed of the pending application for a TRO
August 22, 2022: Plea on the request for TRO heard
August 17, 2022: Judge James W. Herbert recused himself
August 22, 2022: Both parties presented their arguments to the Court on the plaintiff’s PE request for a TRO
August 23, 2022: Justice Torrent ruled in favor of plaintiff EP
Accordingly, it is hereby ORDERED that Plaintiff’s request for a preliminary injunction be granted; and it is further ORDERED that the Preliminary Injunction contained in the Decision and Order dated April 22, 2022 is hereby varied as set forth herein to remain in effect until further notice of namely: Defendant must immediately (1) allow the EP applicant to return to Ursuline school and register for the 2022-2023 academic year; (2) allow the EP Applicant to access her school email account, college applications, and application materials; and (3) allow the EP applicant to otherwise resume all activities as a student in good standing; and Defendant is hereby directed, until further order of the Court, to (4) pursue any further disciplinary proceedings against Plaintiff EP with respect to the alleged conduct at issue in this litigation; and (5) the seizure or maintenance of a deportation record relating to the EP applicant or any other attempt to enforce the deportation of EP; and it is further ORDERED that within ten (10) days of the date hereof, the Plaintiff shall serve a copy of this Decision and Order, together with a Notice of Entry, on the Defendant; and it is further ORDERED that within ten (10) days of service of notice of entry, plaintiff file proof of said service via NYSCEF; and it is further ORDERED that the parties complete and file with the NYSCEF a Preliminary Conference Stipulation to be so ordered, no later than September 2, 2022; and it is further ORDERED that if the parties do not file the preliminary conference stipulation as directed, the parties will appear for a virtual preliminary conference on September 7, 2022 at 12:30 p.m.
August 24, 2022: The Ursuline School of New Rochelle filed an appeal before the Court of Appeal of the 2nd Judicial Section
September 9, 2022: the defendant must file opposing documents
September 16, 2022: applicant must file response documents
November 1, 2022: next court date
Justice Torrent wrote: “It is undisputed that the complainant left her public school due to bullying and that this circumstance was the reason for her enrollment in the Ursuline school. Therefore, a return to public school is not a viable option for the petitioner.
Justice Torrent concluded that the plaintiff had sufficiently demonstrated that:
- Some behaviors involving posting inappropriate content happened before she became a student at the school
- Other students engaged in creating an inappropriate video that the plaintiff posted received a suspension, not an expulsion
- Other students have posted the same or similar videos without receiving any sanctions”
He concluded that it could not seriously be disputed that in the absence of an injunction, the plaintiff will suffer serious and extreme harm and therefore that the balance of actions favors the plaintiff. The Court has already heard evidence on the previous application and all that has changed in the meantime is that the injunction that was issued expired at the end of the previous school year. Given the time constraints presented by the reassignment of this case to this part on the eve of the start of the new school year and the file already constituted, the Court considers that it would be imprudent to issue a TRO and to order a new session. information and hearing on the request. for a preliminary injunction. Rather, the appropriate remedy at this stage is a modification of the earlier preliminary injunction.
Order of Judge Torrent