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Past Drug Charges Derail a Law Students Education - The New York Times

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N.Y./REGION

Past Drug Charges Derail a Law Students

Education
ByELIZABETHA.HARRIS

APRIL 9, 2015

David Powers came out of a drug rehabilitation program about 15 years ago
hungry to swing his life in a significantly different direction. And that he did.
He went back to college and graduated with a 3.9 grade point average. He
was hired at a major accounting firm, worked in senior positions at three
hedge funds, and was accepted to the law school at St. Johns University.
Mr. Powers still calls the day of his arrest, when he was pulled off a
destructive path, the best day of my life.
Halfway through his coursework, while trying to get ahead on his
application to the bar, he acknowledged to St. Johns how far he had come. Not
only had he been convicted of drug possession, a fact he disclosed on his
application, but he had also originally been charged with selling drugs, a fact
he had not. St. Johns then rescinded his acceptance kicked him out
saying that if it had known his complete history, it would never have admitted
him in the first place.
Mr. Powers sued the school, taking the case all the way to the states
highest court, the New York Court of Appeals. Last week, the court handed
down the final word in a 5-to-1 decision: Mr. Powers would not return to St.

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Past Drug Charges Derail a Law Students Education - The New York Times

Johns.
The decision came at an uncomfortable moment, as advocates and elected
officials pushed to limit the amount of information schools and employers can
solicit about an applicants criminal background, saying it makes it more
difficult to re-enter society after a criminal conviction, and even more difficult
to build a full, thriving life.
In 1999, when he was 21, Mr. Powers sold LSD to an undercover police
officer and was arrested on charges including possession of LSD and MDMA,
also known as Ecstasy, with intent to distribute, according to court documents.
But after attending an inpatient drug program, he was able to plead guilty to
lesser charges of possession. His record was eventually expunged.
After rehab, Mr. Powers graduated from Monmouth University in New
Jersey, and was hired at PricewaterhouseCoopers, a powerhouse accounting
firm. There, he became a senior tax associate, before moving on to become
head of finance for one hedge fund and director of global taxation for another.
Mr. Powers lawyer, Roland R. Acevedo, said his client was the poster boy
for rehabilitation.
You couldnt do any better than David, he said.
Mr. Acevedo would make a good poster boy himself. He was convicted of
robbery twice, once in 1978 and again in 1982, he said. He graduated from
Fordham Law School in 1996.
While working at PricewaterhouseCoopers, Mr. Powers went on to get a
masters degree in taxation, and then, in 2005, he applied to St. Johns.
On the application, St. Johns asked for details on any criminal charges, as
well as findings or pleas of guilt. Mr. Powers wrote that he had been an addict
and was sentenced for drug possession, court records show. In an interview,
he said that he consulted a lawyer at the time who recommended, when he

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Past Drug Charges Derail a Law Students Education - The New York Times

applied to another law school, that he should include only the final
downgraded charges in the application.
Mr. Powers chipped away at that law degree as a part-time student, then
began making inquiries about how difficult it would be, given his history, to
gain admittance to the New York bar, a requirement to practice law in the
state.
In the course of that exploration, he gave a more detailed accounting of
his history to St. Johns, including that he had used drugs habitually from ages
16 to 21 and that he sometimes sold them. St. Johns rescinded his acceptance,
saying it had an unwritten policy of not admitting anyone with a history of
selling drugs.
The law school application made it clear that dire consequences could
result if there was a failure to provide truthful answers, the Court of Appeals
said last week in the majority opinion, written by Judge Sheila Abdus-Salaam.
Given this notice and the schools unquestionable interest in ensuring the
integrity of the future attorneys under its tutelage, the penalty of rescission
was not excessive.
The dissenting judge, Eugene F. Pigott Jr., said St. Johns had not proved
that it would have rejected Mr. Powers if it had known his history from the
beginning. Judge Pigott added, Given that Powers had obtained three
semesters worth of credit and presumably paid tuition to attend, rescission of
Powerss application is, in my view, too harsh a penalty for the alleged
infraction.
Some advocacy groups and elected officials have been pushing in recent
years to ban the box on job and school applications that inquires about
criminal records, saying that because minority men in particular are more
likely to be convicted of crimes, the inquiries create racial imbalances.
But Todd McCracken, president of the National Small Business

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Association, a trade group, testified before a congressional committee last year

that criminal background checks were a valuable safety tool.
Criminal background screening is an important tool nearly the only
tool that employers have to protect their customers, their employees and
themselves from criminal behavior, Mr. McCracken said in his prepared
testimony.
Judith M. Whiting, general counsel at the Community Service Society,
which filed a brief in support of Mr. Powers, said the decision would continue
to allow academic institutions to make decisions based on criminal records.
As this case makes clear, it doesnt matter what your rehabilitation has
been since the conviction happened, Ms. Whiting said. You could be the
most accomplished person out there, and Mr. Powers was pretty darn
accomplished, but that need not matter when you apply for higher education.
A bill in the New York Senate, and a companion bill in the Assembly,
would prohibit higher education institutions from asking about criminal
history during admissions. And last year, Eric T. Schneiderman, the New York
attorney general, reached an agreement with three institutions, including St.
Johns University, that said the schools would stop questioning applicants
about their arrest records.
Michael J. Keane, the lawyer who represented St. Johns, said the
admissions standard at the undergraduate level was different from that of a
law school, because law schools had a responsibility to let in only those who
were likely to be admitted to the bar. A history of selling drugs, he said, would
make entry to the bar unlikely.
Its not an issue of fairness, its not an issue of second chances, Mr.
Keane said. Instead, this was a case about misrepresentation by omission, he
said, adding that through a trial and two appeals, St. Johns prevailed.

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According to the New York State Bar Association, a felony conviction does
not automatically disqualify an applicant from the bar. It is left to the
discretion of the courts appellate division, which admits lawyers to practice in
the state.
Mr. Powers said he had spent about $85,000 fighting the decision by St.
Johns, in addition to more than $20,000 on tuition, and with this ruling, he
and his lawyer said, he appeared to run out of road. Mr. Acevedo said Mr.
Powers could not transfer his three semesters of credit to a different law school
without a letter of good standing from St. Johns, which it declined to provide.
Mr. Powerss financial career has stalled as well, because now his
challenges are twofold. In addition to his criminal record, he has a much more
public reputation. He said he applied to over 200 jobs in the past 18 months at
hedge funds and related businesses but had had to cobble together a living
with a real estate license and by preparing tax returns.
This ordeal, in a sense, became more damaging to me than the original
charges, Mr. Powers said. Anyone can Google me and find out about this.
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withtheheadline:PastDrugChargesDerailaLawStudentsEducation.

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Powers v. St. John's Univ. Sch. of Law

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Annotate this Case

Justia Opinion Summary
After David Powers had completed three semesters as a part-time law school student at St. Johns
University School of Law, the law school discovered that Powers had made material misrepresentations
and omissions in his law school application regarding his criminal history. St. Johns subsequently
rescinded Powerss admission based on the applications material omissions and misrepresentations.
Powers subsequently brought this N.Y. C.P.L.R. 28 proceeding against the law school. The Appellate
Division concluded that St. Johns determination to rescind Petitioners admission was not arbitrary and
capricious and did not warrant judicial intervention. The Court of Appeals affirmed, holding that the law
schools penalty of rescission for Powerss failure to truthfully and fully disclose his record was not
excessive.
Collapse Summary
Matter of Powers v St. John's Univ. Sch. of Law 2015 NY Slip Op 02799 Decided on April 2, 2015 Court
of Appeals Abdus-Salaam, J. Published by New York State Law Reporting Bureau pursuant to Judiciary
Law 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on April 2, 2015
No. 28
[*1]In the Matter of David Powers, Appellant,
v
St. John's University School of Law, Respondent.

Roland R. Acevedo, for appellant.

Michael J. Keane, for respondent.
Community Service Society of New York et al., amici curiae.

ABDUS-SALAAM, J.:
This proceeding pursuant to CPLR article 78 challenges a determination of St. John's University School of
Law to rescind petitioner David Powers's admission, after he had completed [*2]three semesters of law
school as a part-time student, based on material misrepresentations and omissions in his application
regarding his criminal history. We agree with the Appellate Division that this determination "was not
arbitrary and capricious, and does not warrant judicial intervention" (110 AD3d 888,889 [2013]).
I.

In November 2005, Powers submitted an application to St. John's University School of Law to become a
part-time law student. The application included the following question:
"Have you ever been charged with, pleaded guilty to, or been found guilty of any crime, offense, or
violation (other than a minor traffic violation), or is any such action pending or expected to be brought
against you?
If yes, please explain in a supplementary statement or electronic attachment the relevant facts, including the
nature of the offense, the dates and courts involved, and the penalty imposed, if any. Note: Although a
conviction may have been sealed or expunged from the record by an order of the court, it nevertheless
should be disclosed in answer to this question."
Powers answered the question "Yes" and submitted a three-page "Background Disclosure" in which he
stated, among other things, that he was "not proud to admit that [he had] used drugs," that in July of 1999
"[he] remembered being pulled over by the police shortly after a drug deal," and that "[a]fter about a year,
the case proceeded and [he] accepted a plea bargain to attend an inpatient rehabilitation program and
complete probation." He stated that he was convicted of "third degree possession of a controlled dangerous
substance." Powers did not, as required by the application, explain all of the relevant facts or the "nature of
the offenses" for which he was charged. He had in fact been charged in the State of New Jersey with
distribution of LSD, second degree; possession of LSD with intent to distribute, second degree; possession
of drug paraphernalia; possession of MDMA (colloquially known as Ecstasy), third degree; possession of
MDMA with intent to distribute; possession of LSD, third degree, and possession of a controlled dangerous
substance in a motor vehicle.
Further, Powers did not accurately represent his convictions. He stated that he had been convicted of third
degree possession of a controlled dangerous substance, while in fact, he had pleaded guilty to second
degree distribution of LSD, and second degree possession of LSD with intent to distribute. The plea
included an agreement that if defendant entered and successfully completed an inpatient program of at least
nine months including any aftercare treatment, the State would consent to the defendant withdrawing his
plea and entering a guilty plea to possession with intent to distribute in the third degree, as amended, where
the recommended sentence would be probation and credit for time served in the inpatient program. The
record shows that defendant did in fact withdraw his plea and enter a guilty plea to possession with intent to
distribute in the third degree. That is not a guilty plea to third degree possession of a [*3]controlled
substance, as Powers had reported in his application.[FN1]
The omissions and misrepresentations first came to the attention of the law school after Powers had
completed three semesters as a part-time student, and while he was on a leave of absence and working in
Hong Kong. In September 2008, he wrote to the Senior Assistant Dean for Students, Kathleen Sullivan,
stating that he intended to petition the Committee on Character and Fitness for an advance ruling with
respect to his past conduct and his fitness to be admitted to the New York bar, and he requested a letter of
support from the law school. Powers subsequently sent Dean Sullivan a draft of his letter to the Committee
on Character and Fitness, which stated, among other things, that he had used drugs habitually from age 16
to 21, that he "sometimes would sell drugs to others" and that in July 2001, he had been arrested for
"distribution of LSD to an undercover officer and possession of Ecstasy." The Dean responded to Powers
that the information he had provided to the Committee on Character and Fitness was not included in his
application to the law school, and that accordingly, the law school would not be providing him with a letter
of support.
In November 2009, Powers applied for an extension of his leave of absence to Spring 2011, which was
granted. In July 2010, Powers requested from the law school a letter of good standing so that he could
apply for a semester abroad in Tokyo. At that point, Dean Sullivan sought guidance from other senior
administrators, including then Assistant Dean for Students-Designate Larry Cunningham. It was decided
that the law school would not provide the letter, and that, because it was apparent that Powers intended to

pursue his legal career, the law school would start the process that it uses with respect to misrepresentations
and omissions on applications.
The school advised Powers that in order to continue at the school, he must seek to amend his application,
including a full accounting of the criminal activity at issue and an explanation of why he had not disclosed
it in his initial application. Powers was informed that upon receipt of the materials, the law school would
determine whether the non-disclosure and underlying criminal activity warranted disciplinary action, which
could include rescission of his admission to the school.
Powers responded in June 2010 by providing, among other things, a copy of his presentence report which
showed the charges against him and his convictions pursuant to his plea. He had not included that report
with his original application. He stated that he had consulted counsel about what he should disclose on his
law school application, and that he did [*4]not see any need to amend the application because he
considered the statement in his application to be adequate. He wrote that he would be in New York in July
and available for a meeting.
In July 2010, Powers met with Dean Sullivan, Associate Academic Dean and Professor of Law Valentine
Turano, Vice Dean Emeritus Andrew Simons and Dean Cunningham. He was given an opportunity to
explain his actions and was told he could submit a written request to amend his law school application.
Powers wrote to Dean Cunningham and stated, among other things, that he had looked over the statement
that accompanied his application "and would like to reaffirm that there is nothing in the statement which is
factually incorrect or needs to be amended. The statement addresses relevant facts, the nature of the
offense, dates and the penalty imposed." He also wrote that the presentence report clearly showed the
original charges as well as the final charges and the charges that the State consented to upon his completion
of a rehabilitation program. He noted that he had completed the program as required and that the State had
consented to a new guilty plea of possession with intent to distribute in the third degree. He explained that
although he was arrested for distribution, that was not something he did with regularity.
In September 2010, the law school notified Powers that his application contained material omissions and
misrepresentations involving criminal charges brought against him, that he had subsequently advised the
school that he had been charged with distribution of LSD and Ecstasy, and that the law school was
rescinding his admission.
II.
Courts have a "restricted role" in reviewing determinations of colleges and universities (Maas v Cornell
University, 94 NY2d 87, 92 [1999][internal quotation and citation omitted]). A determination will not be
disturbed unless a school acts arbitrarily and not in the exercise of its honest discretion, it fails to abide by
its own rules (Matter of Harris v Trustees of Columbia Univ., 62 NY2d 956, 959 [1983] revg for reasons
stated in dissenting op of Kassal, J. 98 AD2d 58, 67-73) or imposes a penalty so excessive that it shocks
one's sense of fairness (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of
Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 234 [1974]). None of those factors is
present here.
The law school's treatment of Powers was rational insofar as it was not wholly inconsistent with the
school's approach to rescission of admission in general. The law school states that while it routinely
receives, and often grants, requests from enrolled students to amend the criminal history sections of their
applications, such amendments usually involve minor offenses such as open container or traffic violations,
or small quantity marijuana possession. Amendments are by no means guaranteed - -the law school states
that on at least two occasions, when the information contained in the subsequent disclosure would have
prevented the individual from being considered for admission, the students' admission was rescinded.
The law school avers that it has an unwritten policy of not admitting people who sell [*5]drugs and that if
Powers had disclosed on his application that his arrest was for the distribution of LSD to an undercover

officer and possession with intent to distribute, his application would have been denied during the initial
screening process. The school explains that it generally distinguishes between applicants with a history of
personal drug use, and those with a history of drug dealing - - the former can be accepted under certain
circumstances, but the latter are not. That is not an irrational policy and certainly within the exercise of the
law school's honest discretion. While Powers questions whether there is such a policy because it is not
memorialized in writing, it is not necessary that the policy be in writing for the school to apply the policy.
It would be untenable for courts to require that every factor that is taken into consideration during the
admission process be reduced to writing. Further, the law school's response to Powers's belated disclosure
was not arbitrary or capricious, given that Powers was on notice, based on the electronic certification that
he submitted with his application, that the failure to provide truthful answers to the questions could result in
denial of admission, dismissal, or rescission of an awarded degree from the school.
Additionally, the law school did not fail to follow its own rules and procedures. Powers was not, as he
contends, entitled to the grievance procedure set forth in the student handbook. The handbook states that it
"is concerned specifically with the conduct of students with respect to academic and related matters." The
handbook has sections that deal with school work, attendance, and examinations. Thus, it is clear that the
grievance procedure does not apply to conduct of students that is unrelated to academic and related matters,
or unrelated to conduct of students when they are enrolled (i.e., conduct connected to the application
process)(see Matter of Mitchell v New York Med. Coll., 208 AD2d 929, 930 [2d Dept 1994][medical
student not entitled to a formal hearing pursuant to a student handbook before being dismissed for a
misrepresentation he made in the admission process because the section of the handbook upon which he
relied was clearly aimed at misconduct committed by an individual while a student at the school, not
fraudulent acts committed prior to admission]). Notably, while the law school did not apply the formal
grievance procedure, it did give Powers a chance to amend his application and explain the
misrepresentations and omissions in writing, in addition to affording him an opportunity to meet with
school administrators to explain his actions.
Finally, the penalty was not so "disproportionate to the misconduct" (Pell, 34 NY2d at 234) as to be
shocking to one's sense of fairness. The law school application made it clear that dire consequences could
result if there was a failure to provide truthful answers. Thus, Powers was on notice of the potential
repercussions should he fail to truthfully and fully disclose his record. Given this notice and the school's
unquestionable interest in ensuring the integrity of the future attorneys under its tutelage, the penalty of
rescission was not excessive.
Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question
should not be answered as unnecessary.

PIGOTT, J.(dissenting):
David Powers has accomplished a significant amount since his (now expunged) conviction. After
successfully completing an in-house drug treatment program, he graduated summa cum laude with a
Bachelor of Science degree in accounting and obtained a Masters in Science degree in taxation. He is
currently a certified public accountant at a well-recognized accounting firm, which hired Powers
notwithstanding his prior conviction. St. John's University School of Law is apparently not as forgiving.
I respectfully dissent because, in my view, St. John's failed to demonstrate with admissible proof that, had
it known in 2005 that Powers had been convicted of a "distribution" offense as opposed to a personal use
offense (which is what Powers led the school to infer on his application), it would have denied his
admission. The only indication that this was St. John's "policy" back in 2005 was a hearsay statement
contained in the only affidavit submitted by a St. John's representative, Assistant Dean for Students, Larry
Cunningham, who was apprised of that "policy" by one Robert Harrison, Assistant Dean for Admissions
and Student Financial Services. Although Dean Harrison may have conveyed to Dean Cunningham that had
St. John's known that Powers had been convicted of a distribution offense it would have rejected Powers's

application "out of hand and would not have been submitted to the Committee on Admissions for review
and consideration," there is no affidavit from a St. John's representative who had personal knowledge that
that was, in fact, St. Johns's policy when Powers applied in 2005. Whether that was, in fact, St. John's
policy is crucial to the determination of this proceeding.
I also disagree with the imposition of this particular penalty rescission of Powers's three semesters worth
of credit. Ironically, the only reason the nature of Powers's conviction was disclosed was because Powers
requested a letter from St. John's in support of his application for an advanced ruling from the Appellate
Division concerning whether he would be admitted to the New York bar in light of his prior conviction,
thereby demonstrating his clear goal of becoming an attorney. Given that Powers had obtained three
semesters worth of credit and presumably paid tuition to attend, rescission of Powers's application is, in my
view, too harsh a penalty for the alleged infraction.
*****************
Order affirmed, with costs, and certified question not answered as unnecessary. Opinion by Judge AbdusSalaam. Chief Judge Lippman and Judges Read, Stein and Fahey concur. Judge Pigott dissents in an
opinion. Judge Rivera took no part.
Decided April 2, 2015
Footnotes
Footnote 1:The records of Powers's arrest and convictions were expunged by order of the Superior Court of
New Jersey, Morris County, dated October 27, 2005.