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Pasternack v. College of New Jersey

November 20, 2007

ERIC PASTERNACK, PLAINTIFF-APPELLANT,
v.
THE COLLEGE OF NEW JERSEY (TCNJ), BARBARA GITENSTEIN, PRESIDENT OF TCNJ; TIMOTHY ASHER, ASSOCIATE DIRECTOR OF CAMPUS ACTIVITIES; MAGDA MANETAS, DIRECTOR OF STUDENT LIFE, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Chancery Division, Mercer County, Docket No. C-99-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 23, 2007

Before Judges Skillman, Winkelstein and Yannotti.

Plaintiff Eric Pasternack appeals from an order entered by the Chancery Division on August 25, 2006, transferring the matter to this court pursuant to Rule 2:2-3(a)(2). For the reasons that follow, we reverse.

I.

In March 2006, plaintiff was a junior at the College of New Jersey (TCNJ). He resided in a campus townhouse with ten other students. On March 31, 2006, plaintiff and seven other students were "socializing" in the common area of the townhouse. Two campus police officers responded to the party and plaintiff was questioned. According to plaintiff, he admitted to having consumed one alcoholic beverage.

The next day, Magda Manetas (Manetas), Director of Student Life and Advisor to the Student Government Association (SGA), and Timothy Asher (Asher), Associate Director of Campus Activities, asked to meet with plaintiff. According to plaintiff, they discussed the incident and how it would affect plaintiff's candidacy for President of the SGA. Plaintiff alleges that Barbara Gitenstein (Gitenstein), the President of TCNJ, told Mineatas that the matter would be expedited.

On April 11, 2006, plaintiff was charged with three violations of TCNJ's alcohol policy and one violation of its noise policy. The SGA elections were held on April 16 and 17, and plaintiff was elected President. It is unclear from the record but it appears that plaintiff took office as President of the SGA upon or shortly after the election.

On April 26, 2006, a disciplinary hearing was held before Residence Director Steven Bobo. Plaintiff signed a waiver of his procedural rights and agreed to an informal hearing. Plaintiff was found responsible for the three alcohol violations, but not the noise violation. Plaintiff received a sanction of residential disciplinary probation until April 26, 2007, and he was required to attend an alcohol awareness program. Plaintiff was informed that he could appeal the disciplinary decision but he elected not to do so.

TCNJ has established certain eligibility requirements for students who wish to hold leadership positions in its student organizations. A student may not serve in an executive board position for such an organization unless the student has: completed a certain level of credits at the college; is fully matriculated; has a minimum 2.0 grade point average; served as a member of the particular organization for at least one year or has substantially equivalent experience; and is "free of probation with restrictions in residence, college-wide disciplinary probation, or higher-level disciplinary sanctions (college-wide probation with restrictions, suspension or dismissal)." Because plaintiff received residential disciplinary probation as a result of the violations of TCNJ's alcohol policy, he did not meet the criteria for holding the office of President of the SGA.

However, under the applicable rules, plaintiff was permitted to apply to the Campus Activities Board (CAB) for an exception to the criteria. The CAB is made up of representatives of twenty-four student organizations. Eleven members constitute a quorum. A vote of two thirds of the members who are present are required to "find in favor of an appeal." Any decision by the CAB on an appeal is final.

On April 27, 2006, plaintiff submitted a request for an exception and the CAB scheduled a hearing on the request that day. Plaintiff claims that he asked that two members of the CAB, Jon King and Olga Ross, be disqualified from participating because they actively supported his opponent in the election. Plaintiff was told to apply to the full CAB to disqualify King and Ross. It appears that the CAB decided that King and Ross could participate. The CAB heard the matter and voted to deny plaintiff's request for an exception.

Plaintiff informed Asher and Manetas of his concerns about the meeting. Because a quorum of the CAB had not been present, the matter was re-scheduled for May 16, 2006. On May 9, 2006, plaintiff was informed in writing of the names ...


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