|
1
|
- Robert Rieder
- University Counsel, The Office of
Counsel
- The University of Alabama in Huntsville
- The Alabama Council of Graduate Deans
- Spring Retreat, April 20, 2007
|
|
2
|
- Public Universities – Constitutional Claims
- Disciplinary Cases
- Academic Cases
- “Mixed” Cases
- Private Universities – Contract and Tort Claims
- Disciplinary Cases
- Academic Cases
- Mixed Cases
|
|
3
|
- Due Process clause,14th Amendment - principal external authority
concerning how a public university may proceed in taking adverse action (e.g.,
dismissal) against students
- When the actions of a public entity (e.g. a state university) deprive
an individual of life, liberty, or property, due process imposes
certain procedural and substantive safeguards
- Courts generally assume, without actually deciding - a student has a
“property” interest and sometimes a “liberty” (reputational) interest
in continued enrollment at a public institution
- Essence of procedural due process:
- Notice of the reason for the action to be taken
- An opportunity to be heard in ones defense
|
|
4
|
- Disciplinary cases
- When facing expulsion or other serious sanctions for misconduct,
students are entitled to certain
procedural protections
- Notice component
- Should include the misconduct charged and rule/policy violated
- Should be provided in sufficient detail and in enough time before the
hearing to allow the student to prepare
|
|
5
|
- Procedural Protections (cont’d)
- Hearing component
- Minimum requisite – provide student opportunity to present a defense
- Includes right to know evidence against him/her and right to respond
to the charges through own and others’ statements
- Also includes right to a decision-maker free from bias or conflict of
interest
- Right to cross-examine, right to counsel, right to a transcript, and
right to appeal – not generally required by courts
- Timing – should precede imposition of sanction
- Basic criterion of procedural due process: “fundamental fairness.”
- “Basic fairness and integrity
of the fact-finding process are the guiding stars.”
- Boykins v. Fairfield Board of Education, 492 F.2d 697 (5th
Cir. 1974)
|
|
6
|
- For less severe sanctions (e.g., probation, warning, etc.), less
procedural protection is required
- Courts often balance several factors in deciding what procedures should
be used
- Those factors are:
- The nature of the individual’s interest affected by the official
action
- The risk of error with the procedure used and the value of additional
or different procedures
- The interest of the public entity and the burden (e.g. financial,
administrative, etc.) on it if additional procedures were required
- See Mathews v. Eldridge, 424 U.S. 319 (1976)
- Institutional disciplinary procedures used for misconduct charges
against undergraduate students - ordinarily sufficient for handling
graduate student misconduct charges
|
|
7
|
- 14th Amendment due process – also addresses the substance of
a public university’s actions where a student’s life, liberty, or
property is affected
- “Substantive” due process in this context provides protection against
“arbitrary or capricious” state action
- Has been interpreted to mean a state university’s decision to impose a
disciplinary sanction must be supported by “substantial evidence” Viverette v. Lurleen B. Wallace State
Junior College, 587 F.2d 191 (5th Cir. 1979)
|
|
8
|
- Graduate students’ suspension for cheating on an exam upheld. Nash v.
Auburn Univ, 812 F.2d 655 (11th Cir. 1987)
- Court assumed property and liberty interest were implicated
- Procedural due process challenge - notice
- Timing: Six days notice prior
to hearing was reasonable (initial notice of 4 days and restated
notice of 2 additional days)
- Content
- Students were informed of the basis for the charges and given adverse
witnesses’ names
- No due process right to a summary of such witnesses’ statements may
be claimed
|
|
9
|
- Graduate student’s cheating suspension (cont’d)
- Procedural due process challenge - hearing
- Students appeared with attorneys and presented testimony through own
witnesses
- No due process right to cross examine witnesses (students were given
option to ask questions through presiding officer)
- One panel member’s prior contact with classmate witnesses and
familiarity with charges not sufficient to render him a biased
decision maker
- Fact that review by Dean, and President (after intermediate review of
panel’s recommendations by faculty committee) may have been
“perfunctory” (not de novo) did not violate due process
- Substantive due process challenge.
Court found decision to suspend students was based on
substantial evidence
|
|
10
|
- What is required by procedural due process – cannot be determined by
applying a rigid formula. Due
process is a “flexible concept.”
- “The very nature of due process negates any concept of inflexible
procedures universally applicable to every imaginable situation. 'Due
process,' unlike some legal rules, is not a technical conception with a
fixed content unrelated to time, place and circumstances." Cafeteria
and Restaurant Workers Union v. McElroy, 367 U.S. 886 (1961)
- “[D]ue process is flexible and calls for such procedural protections as
the particular situation demands.” Morrissey v. Brewer, 408
U.S.471(1972)
- “The standards of procedural due process are not wooden absolutes. The sufficiency of procedures
employed in any particular situation must be judged in the light of the
parties, the subject matter and the circumstances involved.” Ferguson v.Thomas, 430 F.2d 852 (5th
Cir. 1970) (quoted in Nash)
|
|
11
|
- “Academic” Cases
- These cases involve judgments about a student’s academic performance -
grades, clinical evaluations, thesis review and
acceptance/non-acceptance, suspension or dismissal from program due to
academic deficiencies, etc
- While due process does apply to students subjected to academic
sanctions, less protection is required
- Reason: Courts view the making
of evaluative judgments about student academic performance as outside
their area of competence
- “Rule of judicial deference”: In
regard to academic matters, courts generally defer (will not intrude
upon) the judgment of academicians
|
|
12
|
- “Academic evaluations of a student, in contrast to disciplinary
determinations, bear little resemblance to the judicial and
administrative fact-finding proceedings to which we have traditionally
attached a full hearing requirement . . . Like the decision of an
individual professor as to the proper grade for a student in his course,
the determination whether to dismiss a student for academic reasons
requires an expert evaluation of cumulative information and is not
readily adapted to the procedural tools of judicial or administrative
decision making.”
- Board of Curators of the University of Missouri v. Horowitz, 435 U.S.
78 (1978)
|
|
13
|
- What does procedural due process require?
- Student is to be notified of performance deficiencies and the possible impact on academic
standing
- Decision regarding student should be made by a process that is “careful
and deliberate” – no specific kind of procedure is mandated as long as
the process used facilitates reasoned academic judgment
- Adversary hearing – not required
- A university may always choose to provide more than the minimum
required “procedure”
|
|
14
|
- What does substantive due process require?
- “When judges are asked to review the substance of a genuinely academic
decision . . . they should show great respect for the faculty's
professional judgment. Plainly,
they may not override it unless it is such a substantial departure from
accepted academic norms as to demonstrate that the person or committee
responsible did not actually exercise professional judgment.”
- Regents of University of Michigan v. Ewing, 474 U.S. 214 (1985)
|
|
15
|
- Regents of University of Michigan v. Ewing (1985)
- Student enrolled at the University of Michigan in combined
undergraduate and medical education program was dismissed after failing
(badly) exam required to qualify for final two years and after being
denied readmission and permission to retake exam
- He challenged dismissal as a violation of substantive due process
- Supreme Court: Dismissal was not
arbitrary and capricious. It was
made conscientiously and with careful deliberation, based on an
evaluation of the student's entire academic career at the university
|
|
16
|
- Mustell v. Rose, 211 So.2d 489 (Ala. 1968)
- Student dismissed from medical school for failing two courses in 3rd
year. He sued - argued his due
process rights were violated when he was not allowed to be present at
college officials’ meeting when dismissal decision was made.
- Held: Notice and presence of
student in meeting to consider whether he has met academic standards
not required
- “[S]chool authorities have absolute discretion in determining whether a
student has been delinquent in his studies . . . The reason for this
rule is that in matters of scholarship, the school authorities are
uniquely qualified by training and experience to judge the
qualifications of a student . . . It is only when the school
authorities abuse this discretion that a court may interfere with their
decision to dismiss a student.” (Quoting
Connelly v. Univ.of Vermont, 244 F.Supp.156 (D.C.Vt. 1965)
|
|
17
|
- Saville v. Houston County Healthcare Authority, 852 F.Supp. 1512
(M.D.Ala. 1994)
- Student dismissed from nursing anesthesia program
- Court held:
- Student received all process due her, and more, under 14th
Amendment. She was warned about
her deficiencies, received two 30 day clinical probation periods, and
was allowed post-dismissal grievance procedure where she presented
testimony, etc. No formal
hearing required.
- Student’s dismissal was “within accepted academic norms,” so no
substantive due process violation
|
|
18
|
- Since due process requirements differ for disciplinary and academic
cases, distinction becomes important
- Some cases present “characterization” difficulties
- “Academic misconduct” (e.g., cheating or plagiarism) cases
- Student dismissed from medical school for cheating on exams brought
due process action. Without
deciding whether dismissal was for “disciplinary” or “academic”
reasons, court held student received sufficient process under either
scenario. Reilly v. Daly, 666
N.E.2d 439 (Ind.App. 1996)
- Dismissal of microbiology Ph.D. student for repeated failure to
produce requested research records containing thesis data and for
research errors – an “academic” decision. Mauriello v. Univ. of Medicine and
Dentristy of New Jersey, 781 F.2d 46 (3rd Cir. 1986)
- Dismissal of medical student for cheating on exam held to be
disciplinary: “Academic
dismissal cases arise from a failure to attain a standard of
excellence in studies whereas disciplinary dismissals arise from acts
of misconduct . . . Than’s dismissal for academic dishonesty
unquestionably is a disciplinary action for misconduct.” University of Texas Medical School
at Houston v. Than, 901 S.W.2d 926 (Tex. 1995)
|
|
19
|
- Cases difficult to characterize (cont’d)
- Professional or clinical program cases
- Medical student’s problems in clinical performance, peer and patient
relations, personal hygiene, and ability to accept criticism,
resulting in dismissal from program, regarded by Supreme Court as
academic matters. Horowitz
(1977)
- Placement of medical student on leave for lack of professional
demeanor, lack of medical and scientific knowledge, and his inability
to process and apply what knowledge he did have was an “academic”
decision. Ku v. State of
Tennessee, 322 F.3d 431 (6th Cir. 2003)
- Recommendation: “When dismissal
or other serious sanctions depends more on disputed factual issues
concerning conduct than on expert evaluation of academic work, the
student should be accorded procedural rights akin to those for
disciplinary cases.” The Law of
Higher Education, Kaplin and Lee (4th ed.), 987.
|
|
20
|
- 14th Amendment, Due Process requirements - do not bind a private
university and do not afford basis for suit by a student challenging the
university’s imposition of disciplinary or academic sanctions
- Basis for such challenges – contract and/or tort claims
- Breach of contract theory
- In general: Implied contract
created when student is admitted to private university - university
obligated to confer degree if student complies with all stated
requirements
- With specific regard to disciplinary process:
- “[A] majority of courts have characterized the relationship between a
private college and its students as contractual in nature. Therefore, students who are being
disciplined are entitled only to those procedural safeguards which the
school provides . . . The general rule, therefore, has been that where
a private university or college establishes procedures for the
suspension or expulsion of its students, substantial compliance with
those established procedures must be had before a student can be
suspended or expelled.”
- Boehm v. Univ. of Penn. School of Veterinary Medicine, 573 A.2d 575
(Pa.Super.Ct 1990)
|
|
21
|
- A private institution that ignores its disciplinary policies and
procedures in levying penalties against a student for misconduct -
vulnerable to breach of contract claim.
E.g., student expelled for threatening and physically
intimidating law faculty members, allowed to sue university for breach
of contract due to its failure to follow procedural protections
(including notice of allegations against him and hearing) set forth in its
student code. Jarzynka v. St. Thomas Univ. of Law, 310 F.Supp.2d 1256
(S.D.Fla. 2004)
- Courts are inclined to allow private institutions some flexibility in
enforcing their disciplinary procedures, often stating that “substantial
compliance” is sufficient. Harwood
v. Johns Hopkins Univ., 747 A.2d
205 (Md.App. 2000); Al-Khadra v. Syracuse Univ., 737 N.Y.S.2d 491
(N.Y.A.D. 4 Dept. 2002)
- Considerations of “basic fairness” and the absence of evidence of
arbitrary or capricious action by administrators - still important to
some courts
- Private institutions should be cautious about using the term “due
process” in describing its procedural requirements
|
|
22
|
- Courts are more deferential in reviewing legal challenges to academic
decisions of private university administrators
- "This court has recognized that a judgment by school officials
that a student has not performed adequately to meet the school's
academic standards is a determination that usually calls for
judicial deference. Courts
should show great respect for such professional judgments and not
overturn an academic decision 'unless it is such a substantial
departure from accepted academic norms as to demonstrate that the
person or committee responsible did not actually exercise professional
judgment.’ . . . Only the most
compelling evidence of arbitrary or capricious conduct would warrant
interference with the performance evaluation (grades) of a . . .
student made by his teachers."
Jung v. George Washington Univ., 875 A.2d 95 (D.C. 2005).
|
|
23
|
- Academic decisions are thus generally considered “non-reviewable” by the
courts
- Only vulnerability for institution (situations that a court will review
and may overturn if there is sufficient evidentiary support):
- Claim by student that institutional officials acted
- without a rational basis
- in an arbitrary or capricious manner
- maliciously or in bad faith
- in a way that amounts to a substantial departure from academic norms,
indicating absence of professional judgment
- These are typically different statements of the same general standard
- Claim by student of lack of substantial compliance by university
officials with applicable procedures
|
|
24
|
- Courts are especially inclined to defer to the discretion of university
officials where they are making decisions about the competence and
suitability of students preparing for professional (medical, teaching,
legal, engineering, accountancy, etc.) careers. Bender v. Alderson Broaddus College,
575 S.E.2d 112 (W.Va. 2002)
- Student Handbook “reservation of right to change” provision may allow
university to depart from published academic dismissal procedures. Pacella v. Tufts Univ. School of
Dental Medicine, 66 F.Supp.2d 234 (D.Mass. 1999).
|
|
25
|
- Cases involving both academic and misconduct issues may require special
treatment procedurally
- Lekutis v. Univ. of Osteopathic Medicine, 524 N.W.2d 410 (Iowa 1994):
- Medical student with highest grades in class was dismissed because of
failing clinical grades (instructors regarded his behavior, including
fragmented speech, eccentric dress, impulsivity, lack of tact, refusal
to complete forms, etc., as unprofessional, and inappropriate)
- Court treated dismissal as academic and determined Ewing standard was applicable to
university’s actions
- Evolution of “third”/middle category – “academic disciplinary” cases
(involving some professional judgment but also disputed factual issues)?
|
|
26
|
- Claim for “educational malpractice”
- Student may challenge university officials’ evaluation or dismissal
actions by claiming they treated him/her in a negligent or fraudulently
way
- A “tort” claim (as opposed to breach of contract claim)
- Alabama (along with most other states) does not recognize a claim for
educational malpractice
- “If the . . . negligence claims
raise questions concerning the reasonableness of [the defendant
school’s] conduct in providing educational services, then the claims
improperly assert a claim of educational malpractice.” Christensen v. Southern Normal
School, 790 So.2d 252 (Ala. 2001).
See also Blane v. Alabama Commercial College, 585 So.2d 866
(Ala. 1991).
- Policy considerations cited by Alabama Supreme Court in Christensen: A court’s difficulty in determining
how to assess the conduct of an educator or an academic institution in
providing educational services when that conduct is alleged to be
inadequate or unreasonable.
|
|
27
|
- Flow Chart/Diagram
- Factors
- Public or Private Institutions
- Constitutional, Contract, or Tort Claims
- Disciplinary or Academic Case
|
|
28
|
- Type of Institution
- Basis of Claim
- Type of Action
- Requirements
|
|
29
|
- Type of Institution
- Basis of Claim
- Type of Action
- Requirements
|
|
30
|
- Type of Institution
- Basis of Claim
- Type of Action
- Requirements
|
|
31
|
- Type of Institution
- Basis of Claim
- Type of Action
- Requirements
|
|
32
|
- Type of Institution
- Basis of Claim
- Type of Action
- NO CLAIM
|
Notes
