Student Challenges to Academic Decisions

1. Student Challenges to Academic Decisions Barbara A. Lee Rutgers University and Edwards Angell Palmer & Dodge, LLP October 19, 2010

2. Background • Two categories of student challenges • Academic decisions • Disciplinary decisions • Courts have been deferential to “genuine” academic decisions • Board of Curators of U. of Missouri v. Horowitz (1978) • Regents of the Univ. of Michigan v. Ewing (1985)

3. Types of Student Legal Claims • Constitutional • Contract • Tort

4. Constitutional Claims • Due process • Equal Protection • First Amendment free speech • First Amendment religious free exercise and establishment of religion

5. Standard for Deference • “When judges are asked to review the substance of a genuinely academic decision. . . they should show great respect for the faculty’s professional judgment . . . 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 the Univ. of Michigan v. Ewing (1985)

6. Ku v. State of Tennessee (2003) • Medical student placed on involuntary leave of absence for • Failing a required test • Lack of professional demeanor with his colleagues • Being a possible risk to patients in clinical setting • Student claimed these were conduct-based reasons, not academic judgments and thus was owed due process

7. Court said academic judgments could include behavior when judged by professional standards • Student handbook listed application of knowledge, ethical behavior, and interpersonal relationships as criteria for evaluating student academic performance • Faculty had worked with student to help him remediate his problems • Student had taken advantage of appeals process

8. Ward v. Wilbanks (2010) • Master’s student dismissed from school counseling program for refusing to counsel client who was homosexual because of her religious beliefs • Faculty stated that refusal was breach of program and professional association’s code of ethics • Faculty had offered “remediation plan,” which student had rejected

9. Student claimed violations of due process, equal protection, and first amendment free speech, free exercise, and establishment of religion • Court rejected all student claims, awarded summary judgment to university

10. Court ruled that code of ethics was an academic requirement and not a “speech code” • Ward’s refusal to counsel the client or to accept the “remediation plan” was failure to complete an academic requirement of the program

11. Code of ethics did not advance or inhibit religion, and had a secular purpose • Faculty had not attempted to change student’s religious beliefs • Code of ethics treated all religions alike • Faculty had not provided exemptions from the code of ethics for other students

12. Contract Claims • Source of contract? • Student handbook • Academic policies and requirements • Course syllabi • Institution’s or program’s website • Oral promises by faculty (if proven) • Although a few states (e.g., LA, VA) have rejected notion that catalog/policy is contract, you should assume that it is.

13. A few courts have allowed graduate students to state breach of contract claims when faculty advisors allegedly behave unprofessionally • Taking student’s ideas and claiming them as own • Holding a thesis defense with fewer than the required number of committee members • But courts have rejected student claims that the program was “required” to pass them if a thesis defense had been scheduled or one committee member had approved it but others did not.

14. Educational Malpractice • Courts have uniformly rejected student claims of educational malpractice • Difficult to disentangle “fault” among student, professor, and institution • Courts believe they are ill-equipped to determine whether education has been of appropriate quality

15. Courts willhear complaints of fraud or breach of contract where a college violates a specific promise, such as stating that a program is accredited when it is not, or that graduates are eligible to sit for a licensing exam when they are not.

16. Tort Claims • Negligence • Grading disputes • Public return of graded exams or papers • Faculty neglect of duty • “Unfair” exam questions • “Negligent instruction” if physical harm results

17. Defamation • Classroom name-calling • Letters of reference re: student academic performance

18. Suggestions for Policy and Practice • Have an appeals process for grading disputes, decisions to put students on probation or to dismiss for academic reasons • Prior to dismissal or probation, have someone at a higher administrative level review the proposed decision to ensure fairness and consistency

19. Suggestions for Policy and Practice • Review the quality of academic advising; provide training if necessary, particularly for recently-hired faculty • Ensure that program faculty, particularly in professional programs, list specific behavioral, ethical, and practice requirements for students who must complete a clinical component of the program and that these requirements appear in handbooks, policy documents, etc.

20. Examples • Jerry is a fourth year medical student. He has passed all courses and required clinical rotations until the last rotation. He failed his final rotation (pediatrics) and asked to repeat it. The dean refused, citing the policy that students must pass all rotations in order to graduate. Students with disabilities have been permitted to repeat a rotation. What advice would you give the dean?

21. Examples • Sara is a senior majoring in Social Work. She has received five grades of “D” in courses in her major, and has been placed on academic probation. Her internship advisor has notified the program director that Sara has missed several days of her internship and she wants to terminate Sara from the internship. The internship is required for graduation, and failing it will violation the terms of Sara’s academic probation, according to the student handbook. Can she be dismissed from the program?

22. Examples • Todd is enrolled in the master’s program in philosophy. He turned his thesis in to his advisor the previous semester, but the advisor has not responded or provided any comments. When Todd has seen his advisor around the department, the advisor has said “you’re doing ok.” It is one week before the deadline to schedule a thesis defense. The advisor finally returns Todd’s thesis, with one written comment: “This is unacceptable. Try again.”

23. Todd, continued • Todd, upset that he has already paid tuition for a semester spent waiting for the advisor to respond, attempts to meet with his advisor. The advisor sends an email to Todd that says “I’ll be on leave beginning next week and will be back in six months. I will be unavailable to assist you until I return.” • Todd’s advisor is the only faculty member versed in the subject of Todd’s thesis. What should the program director do?

24. Examples • Amy is enrolled in an upper-level course in literary analysis. She is upset with the grade she received on her last paper, which is worth fifty percent of the course grade. She has talked with the professor, and when the professor pointed out the problems she had with the paper, Amy responded that her roommate wrote a paper for the same course in much the same fashion and received an A, while she received a C-. Amy wants the professor to raise her grade, but the professor refuses. Amy says that her father is a big donor and she will “make sure” that the grade gets raised. Suggestions?