she would look for the records, and report back to him. She never contacted plaintiff on the matter. He did, however, have a further discussion with defendant Pyano who insisted that the Department had to maintain on file a medical examination report on all students, and he would have to supply one. He told her that he lacked money for another physical examination and for this reason would not be able to comply with this requirement until the first week of the second semester. There is no indication that Miss Pyano advised plaintiff that this would not be satisfactory. The health record was submitted on March 9, 1973, the second day of the second semester. Neither Miss Pyano, who was ill, nor Miss Pyano's secretary testified at the preliminary injunction hearing, so that it is unknown whether there may be a factual dispute as to the medical reports.
Dr. Harvey Oates, Director of the Nursing Department, testified that he had discussions with Dr. Hale Cook, the physician indicated as having conducted plaintiff's physical examination. Although Dr. Cook could not initially confirm the facts surrounding plaintiff's health records, he later told Dr. Oates that the tests he administered were as reported on the physical examination report submitted on March 9, 1973. Dr. Cook also stated to Dr. Oates that the plaintiff had been to see him on June 22 and July 12. (P-11).
Plaintiff failed to note on his Community College application that he attended the Hahnemann School of Nursing. (D-1). He also failed to submit to Community College a transcript of his work at Hahnemann. At the hearing, plaintiff stated that he interpreted the application's instructions as referring only to prior college or university enrollment. Since he did not consider Hahnemann School of Nursing to be a college or university, he did not list it on his Community College application or submit a Hahnemann transcript. After he was informed that a transcript must be submitted, he requested Hahnemann to do so, and it eventually was submitted; the record is unclear as to when these events occurred.
The testimony of Dr. Oates and the plaintiff was in conflict with respect to plaintiff's class absences. Dr. Oates stated that he was informed by school personnel that plaintiff failed to attend classes regularly. Plaintiff stated he missed occasional classes, approximately three each in Nursing, Biology and Psychology. There is no evidence that these would constitute excessive absences. The problem here is that Community College normally does not retain class attendance records, nor does there appear to be any firm policy as to the number of permitted absences. The only attendance record available was that of plaintiff's Biology class, which indicated that plaintiff had absented himself from class " thrice ", and a further notation that such was "well within the allowable" number of absences. (P-13).
On January 22, 1973, Miss Pyano and other faculty members convened a Special Planning Meeting to review plaintiff's record. Plaintiff was then on disciplinary probation for threatening Mr. Massey, one of the faculty members present. Plaintiff also had received an initial unsatisfactory clinical evaluation.
After discussing plaintiff's clinical experience, it was decided that it would be premature to declare plaintiff unsatisfactory since he still had two weeks of the clinical course remaining. Plaintiff then entered the meeting and discussed with the faculty members his clinical experience, the threat against Mr. Massey (for which he apologized) and the alleged withholding of information. The faculty made no conclusions or evaluations on the latter two matters but did state that they thought the matters involved administrative decisions. (P-14). Plaintiff's final clinical evaluation was satisfactory.
On February 26, 1973, defendant Pyano sent a letter to plaintiff informing him that he must withdraw from the Nursing curriculum at Community College. The reasons expressed in the letter for the mandatory withdrawal were plaintiff's failure to provide the Community College with his physical examination records and a transcript from Hahnemann School of Nursing, and plaintiff's failure to attend classes regularly. These reasons were articulated by Dr. Oates to defendant Pyano in a memorandum dated February 16, 1973. (P-10).
Plaintiff did not receive any notice of impending withdrawal prior to the receipt of the February 26, 1973 letter. Following the letter, plaintiff had meetings with the Provost, Assistant Provost, defendant Pyano and Dr. Oates. However, it does not appear that he was afforded any sort of an impartial hearing.
To obtain a preliminary injunction, a moving party must establish:
(1) a reasonable probability of eventual success in the litigation, and (2) that it will be irreparably injured pendente lite if relief is not granted to prevent a change in the status quo. (Cit. omitted).
A.L.K. Corporation v. Columbia Pictures Industries, Inc., 440 F.2d 761, 763 (3rd Cir. 1971). The probability of plaintiff's eventual success depends solely upon his right to a "due process" hearing prior to expulsion. If plaintiff was dismissed because of disciplinary misconduct, he is entitled to a due process hearing. If he was dismissed solely because of an academic failure, he is not entitled to a hearing. Unfortunately, plaintiff does fit neatly into either of the foregoing categories.
The cases are legion holding that a student must be given notice and an opportunity for a hearing before being expelled from a tax supported college or university for disciplinary reasons. Esteban v. Central Missouri State College, 415 F.2d 1077 (8th Cir. 1969), cert. denied, 398 U.S. 965, 90 S. Ct. 2169, 26 L. Ed. 2d 548 (1970); Wasson v. Trowbridge, 382 F.2d 807 (2nd Cir. 1967); Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir.), cert. denied, 368 U.S. 930, 82 S. Ct. 368, 7 L. Ed. 2d 193 (1961); Jones v. State Board of Education of and for State of Tennessee, 279 F. Supp. 190 (M.D. Tenn. 1968), aff'd 407 F.2d 834 (6th Cir. 1969); Knight v. State Board of Education, 200 F. Supp. 174 (M.D. Tenn. 1961). In determining the specific procedures due process requires
the court must carefully determine and balance the nature of the private interest affected and of the government interest involved, taking account of history and the precise circumstances surrounding the case at hand.