Student Challenges to Academic
Decisions
Barbara A. Lee
Rutgers University and
Edwards Angell Palmer & Dodge, LLP
October 19, 2010
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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)
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Types of Student Legal Claims
• Constitutional
• Contract
• Tort
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Constitutional Claims
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Due process
Equal Protection
First Amendment free speech
First Amendment religious free exercise and
establishment of religion
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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)
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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
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• 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
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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
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• 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
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• 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
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• 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
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Contract Claims
• Source of contract?
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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.
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• 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.
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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
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• Courts will hear 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.
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Tort Claims
• Negligence
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Grading disputes
Public return of graded exams or papers
Faculty neglect of duty
“Unfair” exam questions
“Negligent instruction” if physical harm results
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• Defamation
▫ Classroom name-calling
▫ Letters of reference re: student academic
performance
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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
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Suggestions for Policy and Practice
• Review the quality of academic advising; provide
training if necessary, particularly for recentlyhired 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.
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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?
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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?
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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.”
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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?
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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?