McIntosh v. Borough of Manhattan Community College

433 N.E.2d 1274, 55 N.Y.2d 913, 449 N.Y.S.2d 26, 1982 N.Y. LEXIS 3107

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

We agree that the issue considered by the Appellate Division is governed by Olsson v Board of Higher Educ. (49 NY2d 408; see, also, Matter of Hymes v Schechter, 6 NY2d 352) and that the college did not act capriciously or arbitrarily in refusing to round off petitioner’s 69.713 grade to a passing grade of 70.00.

Petitioner raised additional points at Special Term concerning violation of her right to due process and the correctness of her answers to two examination questions which her professor marked incorrect. She argues that in reversing Special Term the Appellate Division should have remanded for consideration of those additional points. We disagree, concluding that the record does not demonstrate any infringement of petitioner’s right to due process (Board of Curators, Univ. of Mo. v Horowitz, 435 US 78, 89-90; Matter of Sofair v State Univ. of N. Y. Upstate Med. Center Coll. of Medicine, 44 NY2d 475; see Tedeschi v Wagner Coll., 49 NY2d 652) and that an examination question which requires a student to choose between two possible correct answers as a means of testing the student’s judgment is, if subject to judicial review at all, neither arbitrary nor capricious (Board of Curators, Univ. of Mo. v Horowitz, 435 US 78, 91-92, supra; Matter of Gray v Niesley, 35 Misc 2d 837, 839).

Chief Judge Cooke and Judges Jasen, Gabrielli, Wachtler, Fuchsberg and Meyer concur; Judge Jones taking no part.

Order affirmed, with costs, in a memorandum.