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Blum v. University of Pennsylvania

United States District Court, Third Circuit

June 18, 2013

SYDNEY BLUM, Plaintiff,
v.
THE UNIVERSITY OF PENNSYLVANIA, Defendant.

MEMORANDUM OPINION

MITCHELL S. GOLDBERG, J.

This case involves an ongoing dispute between Plaintiff, Sydney Blum, and Defendant, the University of Pennsylvania (“Penn”), which stems from disciplinary proceedings over Blum’s alleged violation of Penn’s Code of Academic Integrity. The matter was settled on January 23, 2012, but is back before the Court pursuant to Blum’s “Motion to Vacate Dismissal and Reinstate the Complaint.” For the reasons set forth below, Blum’s motion will be denied.

I. FACTUAL AND PROCEDURAL BACKGROUND

During the relevant time period, Sydney Blum was an undergraduate student at Penn. Blum suffers from a series of mental and physical disabilities, including attention deficit hyperactivity disorder; severe executive dysfunction; anxiety disorders; a processing disorder; an autonomic nerve disorder; an autoimmune disorder and severe depression. Among other symptoms, Blum has regular disabling and debilitating panic attacks during which she is not able to function normally or process information. (Compl. ¶¶ 9, 11, 14.)

After beginning her studies at Penn, Blum sought assistance from Penn’s office of Student Disabilities Services (“SDS”). SDS provided Blum with several forms of assistance, including test-taking accommodations wherein she was permitted to take exams in a private testing room at the Weingarten Learning Resources Center (“WLRC”). (Id. at ¶¶ 15-16, 19, 22.)

On February 24, 2011, Blum was scheduled to take an examination in her developmental neurobiology course at the WLRC. On the day of the exam, the WLRC staff placed Blum in a private test-taking room. At the commencement of the exam, the proctor, Arthur Levy, informed Blum that the WLRC was out of “official” scrap paper, which carried preprinted identifying marks. The “official” scrap paper with identifying marks was used to prevent students from bringing unauthorized notes into the exam room. Given the lack of “official” paper, Levy made markings on blank paper to create impromptu scrap paper. Blum was then provided with this scrap paper and the exam materials. Levy recalled giving Blum only three sheets of the impromptu scrap paper. Blum contends that she received four sheets of paper: one sheet of the “official” scrap paper along with three sheets of the impromptu scrap paper created by Levy. (Id. at ¶¶ 26, 30-35, 38.)

Blum asserts that, upon receiving the exam, she immediately used the one sheet of “official” scrap paper to engage in “mind dumping, ” a technique in which students immediately write down a number of pieces of information that they believe will be covered on an exam. Approximately an hour later, Levy entered the test-taking room and informed Blum that he believed she was using an unauthorized “cheat sheet.” Specifically, Levy pointed out that Blum had notes on a sheet of the “official” scrap paper, which had been folded several times and had not been provided by him. Levy thus concluded that Blum had somehow obtained a sheet of “official” scrap paper prior to the exam, had written notes to create a “cheat sheet” and had brought the “cheat sheet” into the WLRC. (Id. at ¶¶ 36, 38-39.)

Employees of Penn’s Office of Student Conduct (“OSC”) later contacted Blum as part of an investigation into what happened during the exam. The OSC is tasked with enforcing Penn’s rules and regulations concerning the behavior of students. The OSC also administers disciplinary hearings, which are governed by a series of rules set forth in the Charter of the University of Pennsylvania Student Disciplinary System (“the Charter”). On May 20, 2011, after two meetings between Blum and OSC representatives, the OSC issued a “charge letter, ” charging Blum with a violation of Penn’s Code of Academic Integrity due to the use of an unauthorized study aid. (Id. at ¶¶ 43-45, 47, 51, 53.)

The OSC subsequently scheduled a disciplinary hearing. Blum requested accommodations for the hearing, including the right to submit a written statement to the disciplinary hearing panel, the opportunity to take breaks to relieve anxiety and the physical manifestations of her conditions and the use of an outside attorney to represent her during the hearing. These requests were refused by Penn. Although Penn eventually agreed to postpone the hearing to a date that was agreeable to Blum, it continued to refuse her the accommodations she requested. The OSC later scheduled the hearing for January 24, 2012. (Id. at ¶¶ 59, 67, 69, 80-82.)

On January 20, 2012, Blum filed a suit in this Court, alleging that: (1) Penn refused to offer her reasonable accommodations in the disciplinary process in violation of the Americans with Disabilities Act and § 504 of the Rehabilitation Act; (2) Penn was liable for intentional infliction of emotional distress because it denied her fair and equal access to the disciplinary process and caused her severe distress; and (3) Penn had applied its disciplinary process to her in a manner that was fundamentally unfair. Blum raised this last claim even though the hearing had not yet taken place. Blum asserted that Penn’s refusal to provide her with accommodations would prevent her from meaningfully participating in the future hearing. Blum also concurrently filed a Motion for Temporary Restraining Order and Preliminary Injunction. In her motion, Blum requested that Penn be enjoined from proceeding with the disciplinary hearing until the requested accommodations were provided.

A hearing before this Court was scheduled on January 23, 2012. Following extensive settlement negotiations, the parties agreed to a settlement, which was placed on the record and confirmed by counsel for the parties. The following settlement terms were reached:

1. The disciplinary hearing would be rescheduled;
2. The OSC presenter would not directly question Blum, but could suggest questions to the hearing panel;
3. The OSC presenter, Blum, Blum’s advisor and the hearing panel could question Penn’s witnesses (the advisor’s questioning would be subject to the final determination of the Disciplinary Hearing Officer (“DHO”));
4. The direct examination would be structured to bring out the facts rather than “prosecutorial harangue.”[1] After further discussion, the parties agreed that the disciplinary hearing would not be “a[n] overly adversarial litigation type experience, ” but rather a “fact-finding mission” and that “everyone involved [would] treat it accordingly”;
5. Blum could question Penn’s witnesses subject only to the DHO’s direction;
6. The DHO would determine Blum’s advisor’s “expanded role” at the hearing;
7. The panel could ask questions of any witness;
8. The federal lawsuit would be dismissed with prejudice “unless [this agreement is] substantially breach[ed] in [the Court’s] judgment”;
9. “No fees or costs [would] be assessed in any event unless there’s a breach of an agreement”;
10. Blum’s parents would be permitted in the hearing room;
11. Blum would be permitted to have notes at the hearing;
12. “[A]ffidavits will be permitted as they are under the [C]harter rules”;
13. Penn would limit the number of people in the hearing room.

(See TRO Hr’g Tr. Jan. 23, 2012, pp. 37-50.) Pursuant to this settlement, on January 25, 2012, an order of dismissal was ...


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