The Law of Higher Education, Volume 2, A Comprehensive Guide to Legal Implications of Administrative Decision Making E-Book

William A. Kaplin

• Herausgeber: John Wiley & Sons
• Kategorie: Bildung
• Sprache: Englisch

Seitenzahl: 2891

Veröffentlichungsjahr: 2019

Beschreibung

Your must-have resource on the law of higher education Written by recognized experts in the field, the latest edition of The Law of Higher Education, Vol. 2 offers college administrators, legal counsel, and researchers with the most up-to-date, comprehensive coverage of the legal implications of administrative decision making. In the increasingly litigious environment of higher education, William A. Kaplin and Barbara A. Lee's clear, cogent, and contextualized legal guide proves more and more indispensable every year. Two new authors, Neal H. Hutchens and Jacob H Rooksby, have joined the Kaplin and Lee team to provide additional coverage of important developments in higher education law. From hate speech to student suicide, from intellectual property developments to issues involving FERPA, this comprehensive resource helps ensure you're ready for anything that may come your way. * Includes new material since publication of the previous edition * Covers Title IX developments and intellectual property * Explores new protections for gay and transgender students and employees * Delves into free speech rights of faculty and students in public universities * Expands the discussion of faculty academic freedom, student academic freedom, and institutional academic freedom * Part of a 2 volume set If this book isn't on your shelf, it needs to be.

Leseprobe

Table of Contents

Cover

PART FOUR: THE COLLEGE AND ITS STUDENTS

9 Student Academic Issues

Section 9.1. Overview

Section 9.2. Grading and Academic Standards

Section 9.3. Online Programs

Section 9.4. Academic Accommodations for Students with Disabilities

Section 9.5. Sexual Harassment of Students by Faculty Members

Section 9.6. Academic Dismissals and Other Academic Sanctions

Section 9.7. Degree Revocation

Selected Annotated Bibliography

Notes

10 Student Disciplinary Issues

Section 10.1. Disciplinary and Grievance Systems

Section 10.2. Disciplinary Rules and Regulations

Section 10.3. Procedures for Suspension, Dismissal, and Other Sanctions

Section 10.4. Student Protests and Freedom of Speech

Section 10.5. Speech Codes and the Problem of Hate Speech

Selected Annotated Bibliography

Notes

11 Rights and Responsibilities of Student Organizations and Their Members

Section 11.1. Student Organizations

Section 11.2. Fraternities and Sororities

Section 11.3. The Student Press

Section 11.4. Athletic Teams and Clubs

Selected Annotated Bibliography

Notes

PART FIVE: THE COLLEGE AND LOCAL, STATE, AND FEDERAL GOVERNMENTS

12 Local Governments and the Local Community

Section 12.1. General Principles

Section 12.2. Zoning and Land Use Regulation

Section 12.3. Local Government Taxation

Section 12.4. Student Voting in the Community

Section 12.5. Relations with Local Police

Section 12.6. Community Access to the College's Campus

Section 12.7. Community Activities of Faculty Members and Students

Selected Annotated Bibliography

Notes

13 The College and State Government

Section 13.1. Overview

Section 13.2. State Provision of Public Postsecondary Education

Section 13.3. State Chartering and Licensure of Private Postsecondary Institutions

Section 13.4. State Regulation of Out-of-State Institutions and Programs

Section 13.5. Other State Regulatory Laws Affecting Postsecondary Education Programs

Selected Annotated Bibliography

Notes

14 The College and the Federal Government

Section 14.1. Federal Constitutional Powers over Education

Section 14.2. Federal Regulation of Postsecondary Education

Section 14.3. Federal Taxation of Postsecondary Education

Section 14.4. Federal Aid-to-Education Programs

Section 14.5. Civil Rights Compliance

Section 14.6. Dealing with the Federal Government

Selected Annotated Bibliography

Notes

PART SIX: THE COLLEGE AND EXTERNAL PRIVATE ENTITIES

15 The College and the Education Associations

Section 15.1. Overview of the Education Associations

Section 15.2. Applicable Legal Principles

Section 15.3. The College and the Accrediting Agencies

Section 15.4. Athletic Associations and Conferences

Section 15.5. The American Association of University Professors

Section 15.6. Dealing with the Education Associations

Selected Annotated Bibliography

Notes

16 The College and the Business and Industrial Community

Section 16.1. The Contract Context for College Business Transactions

Section 16.2. The College as Purchaser

Section 16.3. The College as Seller and Competitor

Section 16.4. The College as Research Collaborator and Partner

Selected Annotated Bibliography

Notes

Statute Index

Case Index

Subject Index

End User License Agreement

Guide

Cover

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Note: Since the publication of the Fifth Edition, we have added two outstanding new coauthors to our team, Neal Hutchens and Jacob Rooksby. Their bios are in the “The Authors” section below. We are greatly pleased to introduce them to you.

WKBL

William A. Kaplin

Barbara A. Lee

Neal H. Hutchens

Jacob H. Rooksby

The Law of Higher Education

A Comprehensive Guide to Legal Implications of Administrative Decision Making

Sixth Edition

Volume II

Copyright © 2019 by John Wiley & Sons, Inc. All rights reserved.

Previous editions Copyright © 2013, 2006, 1995 by John Wiley & Sons, Inc.

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ISBN 9781119271840 (vol. 1)ISBN 9781119271871 (vol. 2)

Library of Congress Cataloging-in-Publication Data

Names: Kaplin, William A., author. | Lee, Barbara A., author. | Hutchins, Neal H, author. | Rooksby, Jacob H., 1982- author.

Title: The law of higher education : a comprehensive guide to legal implications of administrative decision making / William A. Kaplin, Barbara A. Lee, Neal H. Hutchens, Jacob H. Rooksby.

Description: Sixth edition. | San Francisco, CA : Jossey-Bass & Pfeiffer Imprints, [2019] | Series: The Jossey-Bass higher and adult education series | Includes bibliographical references and index.

Identifiers: LCCN 2018054935 (print) | LCCN 2018056656 (ebook) | ISBN 9781119271864 (Adobe PDF) | ISBN 9781119271857 (ePub) | ISBN 9781119271840 (vol. 1) | ISBN 9781119271871 (vol. 2)

Subjects: LCSH: Universities and colleges—Law and legislation—United States. | Education, Higher—Law and legislation—United States. | Universities and colleges—United States—Administration.

Classification: LCC KF4225 (ebook) | LCC KF4225 .K36 2019 (print) | DDC 344.73/074—dc23

LC record available at https://lccn.loc.gov/2018054935

Library of Congress Cataloging-in-Publication Data has been applied for and is on file with the Library of Congress.

SIXTH EDITION

The Jossey-Bass Higher and Adult Education Series

9Student Academic Issues

Section 9.1. Overview

Fewer legal restrictions pertain to an institution's application of academic standards to students than to its application of behavioral standards (see Chapter 10). Courts are more deferential to academia when evaluation of academic work is the issue, believing that such evaluation resides in the expertise of the faculty rather than the court.

This deference, however, does not discourage students from challenging decisions concerning their academic performance or issues that arise in the classroom. Section 9.2 discusses cases challenging grades and other academic judgments of students by faculty and academic administrators. Section 9.3 addresses the special legal issues that arise in online courses. The conflict over academic accommodations for students with disabilities is reviewed in Section 9.4, and the seemingly perennial problem of sexual harassment of students by faculty members is addressed in Section 9.5. The various types of challenges to academic dismissals are reviewed in Section 9.6, and degree revocation—a rare but significant decision on the part of a college or university—is discussed in Section 9.7.

Despite the fact that judicial review of academic judgments is more deferential than judicial review of discipline for student misconduct, courts do require institutions to comply with their own rules, policies, and procedures, and to examine the foundations for academic decisions to determine whether they are based on genuine academic judgments. Faculty and administrators should ensure that they adhere to these requirements, and that they fully inform students of their procedural rights for challenging academic decisions.

Section 9.2. Grading and Academic Standards

When a student alleges that a grade has been awarded improperly or that credits or a degree have been denied unfairly, the court must determine whether the defendant's action reflected the application of academic judgment or an arbitrary or unfair application of institutional policy. If the court is satisfied that the decision involved the evenhanded application of academic judgment, the court will typically defer to the institution's decision. But if the student can demonstrate arbitrary, discriminatory, or bad faith actions on the part of faculty or administrators, then the court will scrutinize the decision and may not defer to the institution's decision. Students challenging academic decisions at public institutions generally attempt to state constitutional due process claims, though they may also assert breach of contract, whereas students challenging decisions at private institutions usually allege breach of contract.

Connelly v. University of Vermont, 244 F. Supp. 156 (D. Vt. 1965), set the standard for judicial review of an academic decision. In Connelly, a medical student challenged his dismissal from medical school. He had failed the pediatrics-obstetrics course and was dismissed, under a College of Medicine rule, for having failed 25 percent or more of his major third-year courses. The court described its role and the institution's legal obligation in such cases as follows:

Where a medical student has been dismissed for a failure to attain a proper standard of scholarship, two questions may be involved; the first is, was the student in fact delinquent in his studies or unfit for the practice of medicine? The second question is, were the school authorities motivated by malice or bad faith in dismissing the student, or did they act arbitrarily or capriciously? In general, the first question is not a matter for judicial review. However, a student dismissal motivated by bad faith, arbitrariness, or capriciousness may be actionable….

This rule has been stated in a variety of ways by a number of courts. It has been said that courts do not interfere with the management of a school's internal affairs unless “there has been a manifest abuse of discretion or where [the school officials'] action has been arbitrary or unlawful”…or unless the school authorities have acted “arbitrarily or capriciously”…or unless they have abused their discretion…or acted in “bad faith” [citations omitted].

The effect of these decisions is to give the school authorities absolute discretion in determining whether a student has been delinquent in his studies, and to place the burden on the student of showing that his dismissal was motivated by arbitrariness, capriciousness, or bad faith. 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, and efficiency of instruction depends in no small degree upon the school's faculty's freedom from interference from other noneducational tribunals. It is only when the school authorities abuse this discretion that a court may interfere with their decision to dismiss a student [244 F. Supp. at 159–60].

The plaintiff alleged that his instructor had decided before completion of the course to fail the plaintiff regardless of the quality of his work. The court held that these allegations met its requirements for judicial review. The allegations therefore stated a cause of action, which if proven at trial would justify the entry of judgment against the college.

A decade later, a federal appeals court issued an important reaffirmation of the principles underlying the Connelly case. Gaspar v. Bruton, 513 F.2d 843 (10th Cir. 1975), concerned a nursing student who had been dismissed for deficient performance in clinical training. In rejecting the student's suit against the school, the court held:

The courts are not equipped to review academic records based upon academic standards within the particular knowledge, experience, and expertise of academicians. Thus, when presented with a challenge that the school authorities suspended or dismissed a student for failure re: academic standards, the court may grant relief, as a practical matter, only in those cases where the student presents positive evidence of ill will or bad motive [513 F.2d at 850–51].

The U.S. Supreme Court has twice addressed the subject of the standard of review of academic judgments at public institutions. In the first case, Board of Curators of the University of Missouri v. Horowitz, 435 U.S. 78 (1978) (discussed in Section 9.6.5), a dismissed medical student claimed that the school applied stricter standards to her because of her sex, religion, and physical appearance. Referring particularly to Gaspar v. Bruton, the Court rejected the claim in language inhospitable to substantive judicial review of academic decisions:

A number of lower courts have implied in dictum that academic dismissals from state institutions can be enjoined if “shown to be clearly arbitrary or capricious.”…Courts are particularly ill equipped to evaluate academic performance. The factors discussed…with respect to procedural due process [see Section 9.6.3] speak a fortiori here and warn against any such judicial intrusion into academic decision making [435 U.S. at 91–92].

In the second case, in which the Court relied heavily on Horowitz, a student filed a substantive due process challenge to his academic dismissal from medical school. The student, whose entire record of academic performance in medical school was mediocre, asserted that the school's refusal to allow him to retake the National Board of Medical Examiners examination violated his constitutional rights because other students had been allowed to retake the exam. In Regents of the University of Michigan v. Ewing, 474 U.S. 214 (1985) (discussed in Section 9.6.3), the Court assumed without deciding the issue that Ewing had a property interest in continued enrollment in medical school. The Court noted that it was not the school's procedures that were under review—the question was “whether the record compels the conclusion that the University acted arbitrarily in dropping Ewing from the Inteflex program without permitting a reexamination” (474 U.S. at 225). The court then stated:

Ewing's claim, therefore, must be that the University misjudged his fitness to remain a student in the Inteflex program. The record unmistakably demonstrates, however, that the faculty's decision was made conscientiously and with careful deliberation, based on an evaluation of the entirety of Ewing's academic career [474 U.S. at 225].

Citing Horowitz, the Court emphasized:

When judges are asked to review the substance of a genuinely academic decision, such as this one, 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 [474 U.S. at 225].

Citing Keyishian (discussed in Section 7.1.1), the Court reminded the parties that concerns about institutional academic freedom also limited the nature of judicial review of substantive academic judgments.

In addition to constitutional claims of lack of procedural or substantive due process, such as the claims in Horowitz and Ewing, courts may resolve legal questions concerning the award of grades, credits, or degrees by applying not only standards of arbitrariness or bad faith but also the terms of the student-institution contract (see Section 8.1.3 of this book). A 1979 Kentucky case, Lexington Theological Seminary v. Vance, 596 S.W.2d 11 (Ky. Ct. App. 1979), illustrates the deference that may be accorded postsecondary institutions—especially church-related institutions—in identifying and construing the contract between the institution and a student. The case also illustrates the problems that may arise when institutions attempt to withhold academic recognition from students because of their sexual orientation.

The Lexington Theological Seminary, a seminary training ministers for the Disciples of Christ and other denominations, denied Vance, a student who had successfully completed all his academic requirements, a master of divinity degree because of his admitted homosexuality. Three years after he first enrolled, he advised the dean of the school and the president of the seminary of his homosexuality. In January 1976, the student was informed that his degree candidacy would be deferred until he completed one additional course. In May 1976, after he had successfully completed the course, the faculty voted to grant the master of divinity degree. The seminary's executive committee, however, voted not to approve the faculty recommendation, and the board of trustees subsequently ratified the committee's decision. The student brought suit, seeking conferral of the degree.1

The trial court dealt with the suit as a contract case and held that the seminary had breached its contract with the plaintiff student. The Kentucky Court of Appeals, although it overruled the trial court, also agreed to apply contract principles to the case: “The terms and conditions for graduation from a private college or university are those offered by the publications of the college at the time of enrollment and, as such, have some of the characteristics of a contract.”

The appellate court relied on various phrases from the seminary's catalog—such as “Christian ministry,” “gospel transmitted through the Bible,” “servants of the Gospel,” “fundamental character,” and “display traits of character and personality which indicate probable effectiveness in the Christian ministry”—that it determined to be contract terms. It held that these terms created “reasonably clear standards” and interpreted them to permit the seminary to bar a homosexual student from receiving a degree. The court found that the seminary, being a religious institution preparing ministers to preach the gospel, had “a most compelling interest” in allowing only “persons possessing character of the highest Christian ideals” to graduate and that it had exercised sound discretion in denying the degree.

The court's reasoning sparked a strong dissenting opinion, which examined not only the language in the seminary catalog but also the conduct of the seminary's dean, president, and faculty. To the dissenting judge, “Since neither the dean, the president, nor the faculty understood the catalogue to clearly exclude homosexuals, their view certainly cloud[ed] any contrary meaning.” The dissent also argued that the language used in the catalog was not sufficiently clear: “In the future, the board should consider revising the catalogue to be more explicit on what is meant by ‘fundamental character.’ The board might also make it clear that applications for degree candidacy will not only be ‘evaluated by the faculty’ but will also be reviewed by the board.”

The Lexington Theological Seminary case illustrates that courts may resolve questions of academic credits or degrees by viewing the school catalog as a contract binding on both student and institution. The majority opinion also illustrates the flexibility that courts may accord postsecondary institutions in drafting and interpreting this contract, and the special deference that may be accorded church-related institutions in enforcing terms dealing with religious doctrine. The dissent in this case, however, deserves as much attention as the majority opinion. It cautions administrators against construing ambiguous catalog or policy language in a way that is inconsistent with their prior actions (see Section 1.4.2.3) and illustrates the potential for ambiguity that resides in general terms such as “fundamental character.” Even if administrators could confidently expect broad deference from the courts, the dissent's cautions are still valuable as suggestions for how institutions can do better, of their own accord rather than through judicial compulsion, in ordering their own internal affairs. Statements in the catalog reserving the institution's right to make changes in programs, graduation requirements, or grading policy provide important protections in breach of contract claims. In Bender v. Alderson-Broaddus College, 575 S.E.2d 112 (W. Va. 2002), for example, the court rejected a nursing student's claim that the college's decision to change its grading policy was arbitrary and capricious.

But a court may not necessarily defer to a college's interpretation of its catalog or policy documents. In Russell v. Salve Regina College, 890 F.2d 484 (1st Cir. 1989), Sharon Russell was asked to withdraw from the nursing program at the college because the administrators believed her obesity was unsatisfactory for a nursing student. Russell's academic performance in all but one course was satisfactory or better; the instructor in one clinical course gave her a failing grade, which the jury found was related to her weight, not to her performance. Although the nursing program's rules specified that failing a clinical course would result in expulsion, the college promised Russell that she could remain in the program if she would sign a contract promising to lose weight on a regular basis. She did so, and attended Weight Watchers during that year, but did not lose weight. At the end of her junior year, Russell was asked to withdraw from Salve Regina, and she transferred to a nursing program at another college, where she was required to repeat her junior year because of a two-year residency requirement. She completed her nursing degree, but in five years rather than four.

Although the trial judge dismissed her tort claims of intentional infliction of emotional distress and invasion of privacy (stemming from administrators' conduct regarding her obesity), the contract claim was submitted to the jury, which found for Russell and awarded her approximately $144,000. On appeal, the court discussed the terms of the contract:

From the various catalogs, manuals, handbooks, etc., that form the contract between student and institution, the district court, in its jury charge, boiled the agreement between the parties down to one in which Russell on the one hand was required to abide by disciplinary rules, pay tuition, and maintain good academic standing, and the College on the other hand was required to provide her with an education until graduation. The court informed the jury that the agreement was modified by the “contract” the parties signed during Russell's junior year. The jury was told that, if Russell “substantially performed” her side of the bargain, the College's actions constituted a breach [890 F.2d at 488].

The college had objected to the trial court's use of commercial contract principles of substantial performance rather than using a more deferential approach, such as was used in Slaughter v. Brigham Young University (discussed in Section 10.2.3). But the appellate court disagreed, noting that the college's actions were based not on academic judgments but on a belief that the student's weight was inappropriate, despite the fact that the college knew of the student's obesity when it admitted her to both the college and the nursing program:

Under the circumstances, the “unique” position of the College as educator becomes less compelling. As a result, the reasons against applying the substantial performance standard to this aspect of the student-college relationship also become less compelling. Thus, Salve Regina's contention that a court cannot use the substantial performance standard to compel an institution to graduate a student merely because the student has completed 124 out of 128 credits, while correct, is inapposite. The court may step in where, as here, full performance by the student has been hindered by some form of impermissible action [890 F.2d at 489].

Unlike the student in the Lexington Theological Seminary case, Russell was not asking the court to award her a degree; she was asking for contract damages, which included one year of forgone income (while she attended the other college for the extra year). The appellate court found that this portion of the award, $25,000, was appropriate.2

Establishing breach of contract can be difficult for a plaintiff even when missteps have been made in the administration of an academic program. In Suhail v. University of Cumberlands, 107 F. Supp. 3d 748 (E.D. Ky. 2015), a federal district court considered whether modifications to a clinical psychology Ph.D. program that required students to complete additional courses, an internship, and a competency exam breached the students' contract with the institution. The additional requirements were added to ensure that students would be eligible for state licensure. The previous program administrator had been dismissed for failing to adhere to licensure standards in students' required academic and clinical work. Two students objected in court to the additional requirements, arguing that the institution breached its contract with them. The students and the university both sought to rely on the Lexington Theological Seminary case. In considering the nature of the implied contract under Kentucky law, the court explained that courts remain reluctant to “interfere in the operations of colleges and universities, especially in actions challenging the institution's academic regulations, since the courts possess minimum expertise in this area,” with the court citing the Ewing and Horowitz cases (107 F. Supp. 3d at 755). The court concluded that the institution did not act arbitrarily or capriciously, as the program modifications were made so that graduates would be eligible for state licensure.3 Additionally, the students had the option of completing the original course of study, though they would have been ineligible for state licensure, an issue that the court noted fell outside the university's control. The court was sympathetic to the fact that the students may have enrolled in the program based on misrepresentations that the original degree requirements would lead to state licensure, but it concluded that the university's actions in requiring additional requirements for licensure purposes did not constitute breach of contract.

Courts are increasingly willing to regard graduate program policies and rules as contracts (see, for example, the Johnson v. Yale University case discussed in Section 8.1.3). And in many states, a promise of good faith and fair dealing is an implied term in all contracts. In Onawola v. Johns Hopkins University, 412 F. Supp. 2d 529 (D. Md. 2006), affirmed, 221 F. App'x 211 (4th Cir. 2007), a doctoral student who had completed all of his requirements except his dissertation sued the university for breach of contract and race discrimination when it refused to extend the deadline for the completion of his dissertation. The university had already allowed the plaintiff fourteen years to complete his degree, but had not approved his dissertation because he had not included some elements, such as a survey, that his committee told him to include. The court distinguished the (few) cases in which courts had ordered the institution to award the degree because in those cases the students had completed all of their academic requirements. The court ruled that the university had made numerous accommodations for the plaintiff, “above and beyond any reasonably-imagined contractual requirement,” including extending deadlines several times, and providing expertise and advice. The court noted that many of the issues of which the plaintiff complained

are academic judgments, properly left to the faculty of the University, not [the plaintiff], and certainly not this court. No implied contract which might exist here could be understood to waive the University's right to maintain stringent academic standards; nothing in the record suggests that the faculty acted in an arbitrary or capricious manner toward [the plaintiff] [412 F. Supp. 2d at 533].

In some instances, students have challenged grades or examination results. For example, in Olsson v. Board of Higher Education of the City of New York, 402 N.E.2d 1150 (N.Y. 1980), a student had not passed a comprehensive examination and therefore had not been awarded the master of arts degree for which he had been working. He claimed that his professor had misled him about the required passing grade on the examination. The professor had meant to say that a student must score three out of a possible five points on four of the five questions; instead, the professor had said that a student must pass three of five questions. The student invoked the “estoppel” doctrine—the doctrine that justifiable reliance on a statement or promise estops the other from contradicting it if the reliance led directly to a detriment or injustice to the promisee. He argued that (1) he had justifiably relied on the professor's statement in budgeting both his study and test time, (2) he had achieved the grade the professor had stated was necessary, and (3) injustice would result if the university was not estopped from denying the degree.

The trial court and the intermediate appellate court both accepted the student's argument. The state's highest appellate court, however, did not. Deferring to the academic judgment of the institution, and emphasizing that the institution had offered the student an opportunity to retake the exam, the court refused to grant a “degree by estoppel.” Although conceding that principles of apparent authority and agency law would be relevant in a noneducational context, the court stated that

such hornbook rules cannot be applied mechanically where the “principal” is an educational institution and the result would be to override a determination concerning a student's academic qualifications. Because such determinations rest in most cases upon the subjective professional judgment of trained educators, the courts have quite properly exercised the utmost restraint in applying traditional legal rules to disputes within the academic community…

This judicial reluctance to intervene in controversies involving academic standards is founded upon sound considerations of public policy. When an educational institution issues a diploma to one of its students, it is, in effect, certifying to society that the student possesses all of the knowledge and skills that are required by his chosen discipline. In order for society to be able to have complete confidence in the credentials dispensed by academic institutions, however, it is essential that the decisions surrounding the issuance of these credentials be left to the sound judgment of the professional educators who monitor the progress of their students on a regular basis. Indeed, the value of these credentials from the point of view of society would be seriously undermined if the courts were to abandon their longstanding practice of restraint in this area and instead began to utilize traditional equitable estoppel principles as a basis for requiring institutions to confer diplomas upon those who have been deemed to be unqualified [402 N.E.2d at 1152–53].

Although the court refused to apply the estoppel doctrine to the particular facts of this case, it indicated that in other, more extreme, circumstances estoppel could apply to problems concerning grading and other academic judgments. The court compared Olsson's situation to that of the plaintiff in Blank v. Board of Higher Education of the City of New York, 273 N.Y.S.2d 796 (1966), in which the student had completed all academic requirements for his bachelor's degree but had not spent his final term “in residence.” The student demonstrated reliance on the incorrect advice of several advisors and faculty members, and had failed to satisfy only a technical requirement, rather than an academic one. The court explained:

The outstanding feature which differentiates Blank from the instant case is the unavoidable fact that in Blank the student unquestionably had fulfilled the academic requirements for the credential he sought. Unlike the student here, the student in Blank had demonstrated his competence in the subject matter to the satisfaction of his professors. Thus, there could be no public policy objection to [the court's] decision to award a “diploma by estoppel” [402 N.E.2d at 1154].4

The Olsson case thus provides both an extensive justification of “academic deference”—that is, judicial deference to an educational institution's academic judgments—and an extensive analysis of the circumstances in which courts, rather than deferring, should invoke estoppel principles to protect students challenging academic decisions. Synthesizing its analysis, the court concluded:

It must be stressed that the judicial awarding of an academic diploma is an extreme remedy which should be reserved for the most egregious of circumstances. In light of the serious policy considerations which militate against judicial intervention in academic disputes, the courts should shun the “diploma by estoppel” doctrine whenever there is some question as to whether the student seeking relief has actually demonstrated his competence in accordance with the standards devised by the appropriate school authorities. Additionally, the courts should be particularly cautious in applying the doctrine in cases such as this, where a less drastic remedy, such as retesting, may be employed without seriously disrupting the student's academic or professional career [402 N.E.2d at 1154].

In a more recent grading case, a student in a nurse anesthesia program challenged a “fail” grade in a pass/fail clinical practicum course, which led to her dismissal from the program (Guidry v. Our Lady of the Lake Nurse Anesthesia Program through Our Lady of the Lake College, 170 So.3d 209 (La. Ct. App. 2015)). In considering the student's grade challenge under contract principles, the court stated that the plaintiff had to demonstrate more than that a promise was “inadequately performed” but, instead, must “point to an identifiable contractual promise that the defendant failed to honor” (170 So.3d at 214) (emphasis in original) (citing Ross v. Creighton University, 957 F.2d 410 (7th Cir. 1992)). Rather than delving into the “nuances of educational processes and theories,” the court described its role as providing an “objective assessment of whether the institution made a good faith effort to perform on its promise” (170 So.3d at 214). The student's challenge centered on how the professor had calculated her percentage grade for the course. The court, however, declined to weigh in on the appropriateness of how the grade was calculated, as the student had failed to present evidence that the instructor had acted arbitrarily or capriciously. The student alleged that her grade was intentionally manipulated as a result of her involvement in a previous “cheating scandal,” but the court determined that no support existed in the record for this assertion (170 So.3d at 216).

A college or university may decide not to award a degree, even if the student has completed all academic requirements satisfactorily, because the student has violated the institution's disciplinary code. In Rosenthal v. New York University, 2010 U.S. Dist. LEXIS 95080 (S.D.N.Y. November 13, 2010), affirmed, 482 Fed. App'x 609 (2d Cir. 2012) (unpublished), Rosenthal had completed all of his course work for the MBA degree from NYU. Unbeknownst to the business school faculty and dean, Rosenthal, who worked for PricewaterhouseCoopers, had committed securities fraud by providing “insider information” about a publicly traded company to his brother. Rosenthal did not advise NYU that he was under investigation for securities fraud or that he pleaded guilty to conspiracy to commit securities fraud. NYU learned of Rosenthal's guilty plea, and charged him with a violation of the student code of conduct. A hearing was held (after Rosenthal was released from prison) and the business school's Judiciary Committee found that he had violated both the school's honor code and its code of conduct and recommended that he not be awarded the degree. The faculty concurred, and Rosenthal sued for breach of contract and a declaration that the degree had been awarded.

The court reviewed all of the steps taken by NYU to consider whether Rosenthal should be awarded the degree and found that the school had complied with its policies, that the process followed was fair to the plaintiff, and that the faculty had the authority to decide whether or not to award degrees. NYU, said the court, had no contractual obligation to award Rosenthal the MBA degree. (For additional cases rejecting students' challenges to the denial of their degrees on these grounds, see Harwood v. Johns Hopkins University, 747 A.2d 205 (Md. Ct. Spec. App. 2000), discussed in Section 8.1.3 of this book; Dinu v. Harvard College, 56 F. Supp. 2d 129 (D. Mass. 1999); and Burch v. Moulton, 980 So.2d 392 (Ala. 2008)).

Although rare, students occasionally challenge the grade given in one or more courses. Such a challenge to grades in two law school courses provided the New York courts with an opportunity to address another issue similar to that in Olsson (discussed above)—the standard of review to be used when students challenge particular grades. In In the Matter of Susan M. v. New York Law School, 544 N.Y.S.2d 829 (N.Y. App. Div. 1989), reversed, 556 N.E.2d 1104 (N.Y. 1990), a law student dismissed for inadequate academic performance sought judicial review of her grades in her constitutional law and corporations courses. The student claimed that she had received poor grades because of errors made by the professors in both courses. In the constitutional law course, she alleged, the professor gave incorrect instructions on whether the exam was open book; in the corporations course, the professor evaluated a correct answer as incorrect. The law school asserted that these allegations were beyond judicial review because they were a matter of professional discretion.

Although Susan M.'s claims were dismissed by the trial court, the intermediate appellate court disagreed with the law school's characterization of both grade disputes as beyond judicial review. It agreed that the dispute over the constitutional law examination was “precisely the type of professional, educational judgment the courts will not review” (544 N.Y.S.2d at 830); but the student's claim regarding her answer in the corporations exam, for which she received no credit, was a different matter. The court ruled that the student's allegation that the professor's decision had been arbitrary and capricious required the court to determine whether the professor's justification for giving the student no credit for one of her answers was “rational.” The court remanded this issue to the law school for further consideration of petitioner's grade in the corporations course. The law school appealed, and the state's highest court unanimously reversed the appellate division's holding, reinstating the outcome in the trial court.

The court strongly endorsed the academic deference argument made by the law school, stating in the opinion's first paragraph: “Because [the plaintiff's] allegations are directed at the pedagogical evaluation of her test grades, a determination best left to educators rather than the courts, we conclude that her petition does not state a judicially cognizable claim” (556 N.E.2d at 1105). After reviewing the outcomes in earlier challenges to the academic determinations of colleges and universities, the state's highest court stated:

As a general rule, judicial review of grading disputes would inappropriately involve the courts in the very core of academic and educational decision making. Moreover, to so involve the courts in assessing the propriety of particular grades would promote litigation by countless unsuccessful students and thus undermine the credibility of the academic determinations of educational institutions. We conclude, therefore, that, in the absence of demonstrated bad faith, arbitrariness, capriciousness, irrationality or a constitutional or statutory violation, a student's challenge to a particular grade or other academic determination relating to a genuine substantive evaluation of the student's academic capabilities, is beyond the scope of judicial review [556 N.E.2d at 1107].

Concluding that the plaintiff's claims concerned substantive evaluation of her academic performance, the court refused to review them.

Student attempts to challenge a school's system of grading have met with similar judicial skepticism. In Keefe v. New York Law School, 897 N.Y.S. 2d 94 (N.Y. App. Div. 2010), the student had transferred from another law school, and claimed that he was disadvantaged because the law school refused to allow a pass/fail grade to be given in his legal writing class. The student sought a court order to require the law school to change its grading system. Not surprisingly, the trial court dismissed his claim, saying that there was no implied contract to grade him on a pass/fail basis and noting that the student handbook explicitly stated that letter grades would be used. The court did not defer to the expertise of the faculty, but analyzed the student's allegations as a simple breach of contract claim. (For an additional representative case, see Bender v. Alderson-Broaddus College, 575 S.E.2d 112 (W. Va. 2002) (nursing program's revision of grading scale in courses was not arbitrary or capricious).)

Students' attempts to challenge course requirements have also met with judicial rejection. In Altschuler v. University of Pennsylvania Law School, 1997 U.S. Dist. LEXIS 3248 (S.D.N.Y. March 21, 1997), affirmed without opinion, 201 F.3d 430 (3d Cir. 1999), for example, a law student who had just graduated challenged a failing grade he received in his first year. The grade resulted from the plaintiff's refusal to argue a “mock” case in a legal writing class on the grounds of moral and ethical objections. The plaintiff claimed that the professor “promised” him that he could argue and brief the opposite side but later retracted her promise. When the plaintiff refused to argue the assigned side, he received a failing grade in the course. The court dismissed all contract and tort claims based on the failing grade, saying that the professor's “breach of promise” was an academic decision, which had been reviewed by a faculty committee and found to be appropriate.

And in Disesa v. St. Louis Community College, 79 F.3d 92 (8th Cir. 1996), the court rejected a student's challenge to a particular grade based on alleged “administrative deficiencies” in the testing process, including typographical errors in the materials and test questions, testing on materials not covered in class, an inability to review quizzes after they were graded, and arbitrary implementation of a class policy prohibiting erasure marks. Despite the plaintiff's argument that these were not “academic” decisions per se, the court disagreed and deferred to the college's actions. (For a contrasting example, in which a student does successfully challenge to a course requirement (on First Amendment grounds), see the Axson-Flynn case, discussed in Section 8.1.4 of this book.)

Courts also have refused to review certain challenges to grades on the basis that the claims were “frivolous.” In Banks v. Dominican College, 35 Cal. App. 4th 1545 (1995), for example, the court granted $18,000 in sanctions against the plaintiff; and in Dilworth v. Dallas Community College Dist., 81 F.3d 616 (5th Cir. 1996), the court held that there was no controversy sufficient to rise to the level of federal jurisdiction. But in Sylvester v. Texas Southern University, 957 F. Supp. 944 (S.D. Tex. 1997), a federal district court ordered a law student's grade changed to a “Pass” from a D because the law school had not followed its procedures for adjudicating a grade dispute. The law school's rules provided that, if a student appealed a grade to the Academic Standing Committee, the committee was required to review the disputed grade. Neither the professor who gave the disputed grade nor the Academic Standing Committee complied with university regulations. The court criticized the institution and the professor for flouting the institution's own policies and procedures: “Between active manipulation and sullen intransigence, the faculty, embodying arbitrary government, have mistreated a student confided to their charge. This violates their duty to conduct the public's business in a rationally purposeful manner” (957 F. Supp. at 947). For an illustrative case involving grading where a court refused to grant a university's motion to dismiss a student's lawsuit, see Paulin v. George Washington University School of Medicine and Health Sciences, 878 F. Supp. 2d 241 (D.D.C. 2012). The court ruled that a student asserted plausible claims that, if true, raised legitimate questions concerning whether a grade assigned in a preceptorship and her subsequent dismissal from a physician assistant program were arbitrary and capricious. A jury later found in favor of the university on the issue of liability, and the court refused the student's request for a new trial (Paulin v. George Washington University School of Medicine and Health Sciences, 45 F. Supp. 3d 9 (D.D.C. 2014)).

Another type of claim sometimes alleged by students is a retaliation claim based on some kind of “bad faith” action by university personnel. In Ross v. Saint Augustine's College, 103 F.3d 338 (4th Cir. 1996), a federal appeals court upheld a jury award of $180,000 against a college for harassing an honors student who testified on behalf of a professor in a reverse discrimination suit against the institution. The court held that Leslie Ross “experienced a sudden reversal of fortune at Saint Augustine's College” when her grade point average fell from 3.69/4.0 to 2.2/4.0. The administration called a sudden student body meeting to impeach Ross as class president, and ultimately Ross was not able to graduate. Although the case involved only monetary damages, there is no indication that courts would afford deference to the academic decisions made under those circumstances had the student challenged the college's failure to award her a degree. (For additional cases in which students challenged specific course grades using retaliation theories see Marino v. City University of New York, 18 F. Supp. 3d 320 (E.D.N.Y. 2014) (court denied request to change a student's grade from pass to fail based on claims that the failing grade was based on discrimination against the student on the basis of her disabilities); Davis v. Goode, 995 F. Supp. 82 (E.D.N.Y. 1998) (court denied college's motion for summary judgment); and Mostaghim v. Fashion Institute of Technology, 2002 U.S. Dist. LEXIS 10968 (S.D.N.Y. 2002), affirmed, 57 F. App'x 497 (2d Cir. 2003) (court rejected student's claim that course requirement to design women's wear rather than men's wear constituted a Title IX violation, and that his subsequent grade of C and suspension from the institution were a form of retaliation under Title IX).)

For a summary of legal challenges to academic judgments and a review of the Susan M case, see Dina Lallo, Note, “Student Challenges to Grades and Academic Dismissals: Are They Losing Battles?” 18 J. Coll. & Univ. Law 577 (1992). Susan M is also humorously reviewed in verse by R. E. Rains in 40 J. Legal Educ. 485 (1990), and 43 J. Legal Educ. 149 (1993). (See also Fernand N. Dutile, “Disciplinary Versus Academic Sanctions in Higher Education: A Doomed Dichotomy?” 29 J. Coll. & Univ. Law 619 (2003).)

While students apparently may not obtain academic credentials through litigation, as the above cases suggest, students occasionally may obtain them fraudulently, either by claiming degrees from “diploma mills” or by altering transcripts to make it appear that they completed a degree. For analysis of this issue, see George Gollin, Emily Lawrence, & Alan Contreras, “Complexities in Legislative Suppression of Diploma Mills,” 21 Stanford Law and Policy Rev. 1 (2010); Creola Johnson, “Degrees of Deception: Are Consumers and Employers Being Duped by Online Universities and Diploma Mills,” 32 J. Coll. & Univ. Law 411 (2006); and J. Van Tol, “Detecting, Deterring and Punishing the Use of Fraudulent Academic Credentials: A Play in Two Acts,” 29 Santa Clara L. Rev. 1 (1990).

Section 9.3. Online Programs

9.3.1. Overview. Distance learning, or online education, programs have proliferated in the United States and around the world. Although the technology for transmitting information (and receiving student assignments) may differ from traditional face-to-face, time-bound instruction, many of the legal issues are the same, although they may arise in a different context. But new legal issues have also arisen that require institutions—and courts—to struggle to apply “old” law in new ways and to create new protections and requirements.

Issues that may have been settled for decades, such as who “owns” the course material for a faculty member's course taught in the traditional way, may differ when that course is offered in an online format. Students who enroll in an institution where they have never been physically present may still be required to follow the code of student conduct, but how should a disciplinary hearing be conducted when the student resides in a different state? How can the college ensure that students with disabilities—particularly visual impairments—can access the distance learning technology and participate fully in these programs? (Access by students with disabilities to course websites and other technology is discussed in Section 9.4.2.3.) And the technology itself may also create legal problems for the college, particularly if it does not operate correctly or is subject to “hacking” by unauthorized individuals.

Faculty and administrators may need to adapt their policies and practices to respond to students' allegations of online sexual harassment (by faculty or by student peers) and to suspicions that someone other than the enrolled student is completing assignments and tests. Under what circumstances might an online discussion group be considered a limited public forum (see Section 10.4.2