Amicus Curiae Brief — Regents of the University of Michigan v. Ewing

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No. 84-1273

CLERK

Office - Supreme Court, Us. |

FILED

JUN '7 1985

L. STEVAS.

———

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

REGENTS OF THE UNIVERSITY OF MICHIGAN,

Petitioner,

Vv.

Scott E. EWING,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF OF THE AMERICAN ASSOCIATION

OF UNIVERSITY PROFESSORS AS AMICUS CURIAE

Of Counsel: ANN H. FRANKE *

RALPH S. BROWN JACQUELINE W. MINTZ

127 Wall Street 1012 Fourteenth Street, N.W.

New Haven, CT 06520 Suite 500

(203) 436-7675 Washington, D.C. 20005

(202) 737-5900

Counsel for the

American Association of

University Professors

* Counsel of Record

June 7, 1985

V LSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........ caaieennvnseniaaasetate es ii

INTEREST OF AMICUS CURIAE ....... secienideneinte ean 1

SUMMARY OF ARGUMENT.......00000000 0... aeameaies 4

IEE <icecicshbiciteiibalicscnihdaniniiittentcitibintincteriteaminenticticmesinesnneien 6

I. THE FOURTEENTH AMENDMENT RE-

QUIRES SUBSTANTIVE DUE PROCESS RE-

VIEW OF STUDENT ACADEMIC STANDING

UNDER AN “ARBITRARY AND CAPRI-

SOT TIED seisenticcstpinconenssien eineatidaioenssiunimnniniiboenes 6

Il. SUBSTANTIVE DUE PROCESS IS SATIS.

FIED IF THE INSTITUTION ARTICULATES

A SOUND ACADEMIC REASON FOR ITS

DISMISSAL OF THE STUDENT... 12

IIIT sicipnetinisaintcoctdiennibioestelnieedbiininvonsipennpsentenssees 17

TABLE OF AUTHORITIES

CASES Page

Adamian v. Jacobsen, 523 F.2d 929 (9th Cir.

NNN 2

BOD ccnccccscsncncnsiniiiesienamsssiansiaa ane 7

Board of Education of the City of Oklahoma City

v. National Gay Task Force, 105 S. Ct. 1858

CEI ncccnsecienntctensniestsniiapiiasiaes ne 2

Board of Curators, University of Missouri v.

Horowitz, 4835 U.S. 70 (1978) 00... 4, 5, 6,9

Board of Education v. Vail, 104 S. Ct. 2144

CIID eccccec.ivesiessnvernscssinniessiciaiilemnsiaaiiaiaanntennn 2

Board of Regents v. Roth, 408 U.S. 564 (1972)... 2

Cafeteria Workers Union, Local 473 v. McElroy,

et SO | ee 5, 9, 12

Coleman v. Alabama, 399 U.S. 1 (1970)... 17

Dayton Board of Education v. Brinkman, 433 U.S.

a t , , | nae M ne 16

Dunlop v. Bachowski, 421 U.S. 560 (1975)... 5, 12, 13

Gray v. Board of Higher Education, City of New

York, 692 F.2d 901 (2d Cir. 1982)... veitemen 2,15

Healy v. James, 408 U.S. 169 (1972)... 6, 16

Hines v. Rinker, 667 F.2d 699 (8th Cir. 1981)... 7

Hubbard v. John Tyler Community College, 455

F. Supp. 753 (E.D. Va. 1978).............................. 7

Jimenez v. Aldovar, 650 F.2d 363 (1st Cir. 1981). 2

Keyishian v. Board of Regents, 385 U.S. 589

fj NEE 2

Kunda v. Muhlenberg College, 621 F.2d 532 (3rd

+ 3 2

Lavash v. Kountze, 473 F. Supp. 868 (D. Mass.),

aff'd, 604 F.2d 103 (1st Cir. 1979)... 7

Marzette v. McPhee, 294 F. Supp. 562 (W.D. Wisc.

IIIS anneicocsscissnnssssittnsrecitlinisinsaaesannaaanman 2

Minnesota State Bd. for Community Colleges v.

Knight, 104 S. Ct. 1058 (1984) 00 2

Motor Vehicles Manufacturers Association of the

United States v. State Farm Mutual Automobile

Insurance Company, 463 U.S. 29 (1983)... 14

iii

TABLE OF AUTHORITIES—Continued

Pacific States Box & Basket Co. v. White, 296 U.S.

8 RAS re

Perry v. Sindermann, 408 U.S. 593 (1972) ae

Ponte v. Real, 53 U.S.L.W. 4549 (U.S. May 21,

SSSR

Princeton University v. Schmid, 455 U.S. 100

ews

Regents of the University of California v. Bakke,

Rescue Army v. Municipal Court of Los Angeles,

i cenemnenes

San Diego Community College Teachers Associa-

tion v. Governing Board of the San Diego Com-

munity College District, No. 492817 (Calif.

Superior Ct., San Diego, Dec. 21, 1982) _.........

Soglin v. Kauffman, 295 F. Supp. 978 (W.D. Wisc.

STE SS ST

Stevens v. Hunt, 646 F.2d 1168 (6th Cir. 1981)...

Stricklin v. Regents of University of Wisconsin,

297 F. Supp. 416 (W.D. Wisc. 1969) 0.

Sweezy v. New Hampshire, 354 U.S. 234 (1957)...

Tilton v. Richardson, 403 U.S. 672 (1971) ...............

Watson v. University of Southern Alabama Col-

lege of Medicine, 436 F. Supp. 720 (S.D. Ala-

Te ennuemnesuuve

Whitehill v. Elkins, 389 U.S. 54 (1967) 0000000000.

Page

~] bo

Youngberg v. Romeo, 457 U.S. 307 (1982) _............ passim

CONSTITUTIONAL PROVISION

Constitution of the United States, Fourteenth

Amendment ..................... OLA RIES OO

OTHER AUTHORITIES

AAUP Committee G Report, The Selection, Reten-

tion, and Promotion of Undergraduates, 12

AAUP BULL. 370 (Oct. 1926) ...............................

AAUP PoLicy DOCUMENTS AND REPORTS (1984):

1940 Statement of Principles on Academic

TABLE OF AUTHORITIES—Continued

1966 Statement on Government of Colleges

I a a

1966 Statement on Professional Ethics .........

1967 Joint Statement on Rights and Freedoms

OT i a reas

1971 Statement on Procedural Standards in

Faculty Dismissal Proceedings ...................

American Council on Education, “Self-Regulation

Initiatives: Guidelines for Colleges and Univer-

sities, Confidentiality of College and University

Faculty Personnel Files: Its Appropriate Role

in Institutional Affairs,’”’ December 1981...

Dessem, Board of Curators of the University of

Missouri v. Horowitz: Academic Versus Judicial

Expertise, 39 OHI0 ST. L. J. 476 (1978) _......

Finkin, On “Institutional” Academic Freedom, 61

_ ee 8 £ Se eee

Garland, Deregulation and Judicial Review, 98

eS UE 8: ee

Henderson, The Law and Academic Evaluation

and Dismissal in Higher Education, 13 Cum. L.

Note, Judicial Review of the University-Student

Relationship: Expulsion and Governance, 26

PATE. Tis TED. TD CI vineeeceevecccccecteeecesscerteceneceees

Rabin, Job Security and Due Process: Monitoring

Administrative Discretion Through A Reasons

Requirement, 44 U. CuI. L. REv. 60 (1976)...

Scanlon, Due Process, in DUE PROCESS (Pennick

and Chapman ed.), NoMos XVIII 93 (1977)

Shils, THE ACADEMIC ETHIC (1983)

Van Alstyne, Furnishing Reasons for a Decision

Against Reappointment: Legal Considerations,

62 AAUP BULL. 285 (Summer, 1976)

IN THE

Sipreme Court of the United States

OCTOBER TERM, 1984

No. 84-1273

REGENTS OF THE UNIVERSITY OF MICHIGAN,

Petitioner,

Vv.

ScoTT E. EWING,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF OF THE AMERICAN ASSOCIATION

OF UNIVERSITY PROFESSORS AS AMICUS CURIAE

This brief is filed on behalf of the American Associa-

tion of University Professors (“AAUP”) with the con-

sent of both parties.

INTEREST OF AMICUS CURIAE

This case raises issues of due process and the role of

judicial review of academic decisions, subjects among the

central concerns of AAUP. Founded in 1915, AAUP is

the nation’s oldest and largest organization dedicated ex-

clusively to advancing the interests of professors and re-

search scholars in all academic disciplines. Vigilant in

the defense of academic freedom, AAUP has frequently

participated in this Court and in the lower courts in cases

_ raising First Amendment and due process questions,’ and

has on several occasions spoken directly to matters of

judicial deference in the resolution of academic litigation.’

One of the Association’s central functions, frequently

undertaken in collaboration with other higher education

organizations, is the formulation of national standards

for the protection of academic freedom and other impor-

tant aspects of university life.* Several AAUP-supported

statements bear on the instant case. The 1967 Joint

Statement on Rights and Freedoms of Students was for-

mulated jointly by AAUP, the United States National

Student Association, the Association of American Col-

leges, the National Association of Student Personnel Ad-

ministrators, and the National Association of Women

Deans and Counselors. Each organization endorsed the

Joint Statement as have many other professional bodies.‘

The Joint Statement provides in pertinent part:

1E.9., Board of Educ. of the City of Oklahoma City v. National

Gay Task Force, 105 S. Ct. 1858 (1985); Minnesota State Bd. for

Community Colleges v. Knight, 104 S. Ct. 1058 (1984); Board of

Educ. v. Vail, 104 S. Ct. 2144 (1984); Perry v. Sindermann, 408

U.S. 593 (1972); Board of Regents v. Roth, 408 U.S. 564 (1972);

Whitehill v. Elkins, 389 U.S. 54 (1967); Kewishian v. Board of

Regents, 385 U.S. 589 (1967).

2 Princeton University v. Schmid, 455 U.S. 100 (1982); Gray v.

Board of Higher Educ., 692 F.2d 901 (2d Cir. 1982); Kunda v.

Muhlenberg College, 621 F.2d 532 (3rd Cir. 1980).

3 See 1940 Statement of Principles on Academic Freedom and

Tenure, reprinted in AAUP PoLicy DOCUMENTS AND REPORTS

(1984) and cited, inter alia, in Tilton v. Richardson, 403 U.S. 672

(1971); Jimenez v. Aldovar, 650 F.2d 363 (1st Cir. 1981);

Adamian v. Jacobsen, 523 F.2d 929 (9th Cir. 1975).

* Several cases stemming from campus disturbances of the late

1960s relied in part on the Joint Statement. Stricklin v. Regents

of University of Wisconsin, 297 F. Supp. 416, 420 (W.D. Wisc.

1969) ; Soglin v. Kauffman, 295 F. Supp. 978 (W.D. Wisc. 1968) ;

Marzette v. McPhee, 294 F. Supp. 562 (W.D. Wisc. 1968).

IN THE CLASSROOM

The professor in the classroom and in conference

should encourage free discussion, inquiry, and ex-

pression. Student performance should be evaluated

solely on an academic basis, not on opinions or con-

duct in matters unrelated to academic standards.

A. Protection of Freedom of Expression

Students should be free to take reasoned exception

to the data or views offered in any course of study

and to reserve judgment about matters of opinion,

but they are responsible for learning the content of

any course of study for which they are enrolled.

B. Protection against Improper Academic Evalua-

tion

Students should have protection through orderly

procedures against prejudiced or capricious academic

evaluation. At the same time, they are responsible

for maintaining standards of academic performance

established for each course in which they are en-

rolled.®

We suggest below a standard for judicial review of deci-

sions involving the academic standing of students that

gives due consideration both to the student’s right to be

free from prejudiced or capricious evaluation and to the

unique competence of professors in judging the academic

progress of their students.

AAUP is also a co-sponsor of the Statement on Govern-

ment of Colleges and Universities,’ formulated in 1966 by

AAUP, the American Council on Education, and the As-

sociation of Governing Boards of Universities and Col-

leges. The Statement on Government recognizes the pri-

macy of the faculty role in such fundamental areas as

5 AAUP POLICY DOCUMENTS AND REPORTS 141, 142 (1984).

6 Td. 105.

“curriculum, subject matter and methods of instruction,

. . and those aspects of student life which relate to the

educational process.” * It goes on to indicate that:

[t]he faculty sets the requirements for the degrees

offered in course, determines when the requirements

have been met, and authorizes the president and

board to grant the degrees thus achieved.

Finally, AAUP’s 1966 Statement on Professional Ethics

stresses the professor’s responsibility “to assure that his

evaluation of students reflects their true merit.”* By

virtue of its long-standing concern with matters of aca-

demic freedom, faculty responsibility, and student rights,

AAUP believes it is uniquely situated to address the

Court as amicus curiae.

SUMMARY OF ARGUMENT

The second question presented for review by the peti-

tion for writ of certiorar? in this case asks whether, in

light of Board of Curators, University of Missouri v.

Horowitz, 435 U.S. 70 (1978), the dismissal of a student

from a state medical school for academic deficiencies may

“be subjected to substantive due process review and re-

versal by the federal courts without any regard for the

faculty’s special expertise.” ® The petition asserts that

no substantive due process should be accorded to disputes

over student academic standing; then assuming arguendo

the existence of such review, the petition goes on to argue

that faculty judgments are entitled to deference from the

courts. Petition for Writ of Certiorari at 15-22. Amicus

AAUP submits that the substantive due process protec-

tions of the Fourteenth Amendment extend to the aca-

7 Id. at 109.

8 Id. at 133.

® Amicus AAUP confines its discussion to the second question

presented for review and does not address the Eleventh Amend-

ment issues.

OO EEO

demic dismissal of state college and university students.

In exercising substantive review, the courts should accord

great, but not total, deference to the judgment of faculty

members.

Substantive due process review of student academic

standing can be undertaken by the courts without exces-

sive interference in the affairs of academic institutions,

contrary to the dictum in Board of Curators, University

of Missouri v. Horowitz, 435 U.S. 78 (1978). In Young-

berg v. Romeo, 457 U.S. 307 (1982), the Court articu-

lated a standard of substantive due process review that

accords great deference to the professional judgments of

responsible officials and avoids unnecessary intrusion into

the affairs of specialized state institutions. While the

setting in Youngberg was a mental institution, its holding

is fully applicable to higher education. Youngberg teaches

that the decision of a professional abridging a constitu-

tionally protected interest occasions liability only when

the decision “is such a substantial departure from ac-

cepted professional judgment, practice or standards as to

demonstrate that the person responsible actually did not

base the decision on such a judgment.” Jd. at 323. The

academic evaluation of students can readily be assessed

under this standard. If the exercise of faculty judgment

about a student’s academic progress falis within generally

accepted professional standards, no liability arises. Only

in the rare instance where a rational professional basis is

lacking for the the academic evaluation of a student

should the courts intervene. See Cafeteria Workers Un-

ion, Local 473 v. McElroy, 367 U.S. 886 (1961). No trial

de novo would be required to examine in detail the stu-

dent’s performance. The Fourteenth Amendment requires

only that the institution articulate a sound academic rea-

son for its dismissal of the student. Dunlop v. Bachowski,

421 U.S. 560 (1975). See Ponte v. Real, 53 U.S.L.W.

4539 (U.S. May 21, 1985). With the court’s role con-

fined to examination of the institution’s statement of rea-

sons, appropriate deference to academic decision-making

is preserved.

In view of the yet unsettled factual disputes in this

ease, amicus AAUP urges the Court to announce the

standard of substantive due process review for student

academic standing discussed herein, and to remand the

case for application of the standard by the lower courts.

See, e.g., Healy v. James, 408 U.S. 169 (1972).

ARGUMENT

I. THE FOURTEENTH AMENDMENT REQUIRES

SUBSTANTIVE DUE PROCESS REVIEW OF STU-

DENT ACADEMIC STANDING UNDER AN ARBI-

TRARY AND CAPRICIOUS TEST

The instant case provides an opportunity to re-examine

the suggestion made in dictum in Board of Curators,

University of Missouri v. Horowitz, 4385 U.S. 78, 91-92

(1978), that substantive due process review may not ex-

tend to the dismissal of students from public colleges

and universities on academic grounds. In Horowitz, the

Court assumed arguendo the existence of substantive re-

view and concluded that no showing of arbitrariness or

capriciousness had been made.’® The reluctance to rec-

ognize substantive due process review rested on the prem-

ise that “[c]ourts are particularly ill-equipped to evaluate

academic performance.” Id. at 92. Substantive review

for disciplinary dismissals is available, but the Horowitz

dictum suggests that academic judgments are not sus-

ceptible to substantive judicial examination. Apart from

the difficulty of differentiating dismissals on disciplinary

grounds from those on academic grounds in many cases,

mechanisms do exist for effective substantive due process

review to correct the rare instances in which dismissals

on allegedly academic grounds are in fact based on dis-

crimination, ill will, or arbitrary action. Many lower

10 Separate opinions by Justice Marshall and Justice Blackmun

joined by Justice Brennan suggested that the question of substan-

tive due process violation should have been remanded for considera-

tion in the first instance by the court of appeals.

courts have been prepared even after Horowitz to safe-

guard students’ interests where necessary through limited

inquiry into the appropriateness of decisions concerning

academic standing." More significantly, decisions of this

Court affirming the existence of substantive review in

analogous settings compel the recognition of such review

in disputes over student standing. We turn to these cases

following a discussion of student and institutional interests.

Most assessment of students is conducted in a con-

scientious manner by faculty members. Examinations are

constructed and graded with care, consistent with the tra-

dition of objectivity and fairness which is deeply ingrained

in the academic profession. As Horowitz and the instant

case both illustrate, systematic counseling and internal

grievance procedures are commonly available. From the

student’s perspective, grades can provide a measure of

progress valuable to the intrinsic process of learning.

Access to graducte education and to attractive employ-

ment opportunities often turns on academic performance.

The noted scholar Edward Shils has observed:

Students must not only be taught. They must also

be assessed and they must be assessed fairly by their

examiners. The assessment is important because it

affects the students’ chances in their subsequent

studies and in admission to their professional careers.

11 Aubuchon v. Olson, 467 F. Supp. 568, 572 (E.D. Mo. 1979) ;

Watson v. Univ. of So. Alabama Coll. of Medicine, 436 F. Supp.

720, 727 (S.D. Ala. 1979). See Hines v. Rinker, 667 F.2d 699, 703

(8th Cir. 1981); Stevens v. Hunt, 646 F.2d 1168, 1170 (6th Cir.

1981). But see Lavash v. Kountze, 473 F. Supp. 868 (D. Mass.),

aff'd 604 F.2d 103 (1st Cir. 1979); Hubbard v. John Tyler Com-

munity College, 455 F. Supp. 753 (E.D. Va. 1978). See generally

R. Dessem, Board of Curators of the University of Missouri v.

Horowitz: Academic versus Judicial Expertise, 39 OnIo ST. L.J.

476 (1978); D. Henderson, The Law and Academic Evaluation and

Dismissal in Higher Education, 18 Cum. L. REv. 475 (1983); Note,

Judicial Review of the University-Student Relationship: Expulsion

and Governance, 26 STAN. L. REV. 95 (1973).

Assessment also affects the students’ attitude towards

their studies and towards themselves. Just assess-

ment is as necessary for society as it is for the indi-

vidual student.”

While society has an interest in just evaluation of

students, it also has an interest, long recognized in this

Court, in preventing infringements on academic freedom.

As Justice Powell observed in Bakke, the freedom of a

university to make its own judgments as to education in-

cludes “the selection of its student body.” ** This prin-

ciple follows from Justice Frankfurter’s frequently cited

reference to the “four essential freedoms” of the univer-

sity, among them the right to determine “who may be

admitted to study.” * The right to decide on admissions

surely subsumes the right to assess the continuing fitness

of students for matriculation.’ Such academic judg-

ments are grounded on the special competence of faculty

members in their disciplines and in evaluating student

performance. While abuses in grading are rare and

while academic decisions merit protection from excessive

12 E, Shils, THE ACADEMIC ETHIC 48 (1983).

138 Regents of the University of California v. Bakke, 438 U.S. 265,

812 (1978). M. Finkin, On “Institutional” Academic Freedom, 61

Tex. L. REv. 817 (1983).

14 Regents of the University of California v. Bakke, supra, 438

U.S. 265, 312, quoting Sweezy v. New Hampshire, 354 U.S. 234, 263

(1957) (Frankfurter, J., concurring).

15 An early report by an AAUP committee observed:

The question of the Retention and Promotion of Undergrad-

uates is directly and intimately related to that of selection for

admission. So intimate is the relation that, were it possible to

achieve a method of selective admission which should serve as

a perfect prognostic of later performance, the question of re-

tention and promotion would no longer trouble us. But such in-

fallibility of prediction can never be attained; for human

nature does not always fulfill its early promise.

Committee G Report, The Selection, Retention, and Promotion of

Undergraduates, 12 AAUP BULL. 370, 472 (Oct. 1926).

judicial intrusion, the possibility for abuse in student

assessment remains. We submit that the Fourteenth

Amendment requires the courts to maintain a limited

role in substantive due process review.

Were a faculty member motivated by racial animus

to fail all minority students in a class, substantive review

would surely be available. Similarly, the professor retal-

iating against students for the exercise of their First

Amendment rights would be accountable for the consti-

tutional violation. The dictum in Horowitz cannot con-

ceivably be extended to foreclose review in these circum-

stances. Even in Cafeteria Workers Union, Local 473

v. McElroy, 367 U.S. 886, 898 (1961), where at issue

was access by a short order cook to a job in a military

installation, the Court confirmed that discriminatory or

arbitrary government action will not be tolerated:

We may assume that Rachel Brawner could not

constitutionally have been excluded from the Gun

Factory if the announced grounds for her exclusion

had been patently arbitrary or discriminatory—that

she could not have been kept out because she was a

Democrat or a Methodist.

Surely students are deserving of at least as much pro-

tection and Horowitz should not be read to the contrary.*®

What of the case in which a faculty member, assert-

ing the meaninglessness of grades, randomly fails half

of the students in a class? Such a situation presents

neither discrimination nor ill will, but rather a standard

of assessment that is manifestly unjust to the students

directly affected. Cafeteria Workers suggests that relief

from such arbitrary action is available, a conclusion also

to be drawn from the more recent case of Youngberg v.

Romeo, 457 U.S. 307 (1982). In Youngberg the Court

analyzed the substantive due process rights of involun-

16 We discuss in Part II the requirement that reasons be articu-

lated to explain the adverse action.

—

tarily-committed mentally retarded persons under the

Fourteenth Amendment to the Constitution. Finding

protectible interests, including the right to safe condi-

tions and freedom from bodily restraint,’ the Court ad-

dressed at length the standards for scrutinizing the sub-

stance of decisions interfering with those interests. The

Court, balancing the needs of mental patients against

the state’s interest in autonomy and the limits of its re-

sources, repeatedly stressed the deference owed to the

professional judgments of those charged with the care

of the mentally retarded.'* Acknowledging the need for

some substantive due process review, the Court articu-

lated the standard of deference to be accorded to pro-

fessional judgments. Youngberg suggested that this def-

erence minimized judicial interference in the professional

practices of the institutions in question, a consideration

no less applicable to institutions of higher learning. The

Court stated:

For these reasons, the decision, if made by a profes-

sional, is presumptively valid; liability may be im-

posed only when the decision of the professional is

such a substantial departure from accepted profes-

sional judgment, practice or standards as to demon-

strate that the person responsible actually did not

base the decision on such a judgment.

Id. at 323. This, then, answers the hypothetical case of

the professor who refuses to recognize the validity of any

grading system. The marks assigned by such a professor

17 The petition for writ of certiorari in the instant case does not

appear to challenge the court of appeals’ conclusion that Ewing had

a constitutionally protected property interest in continuing his

medical education. The due process questidn presented for this

Court’s consideration concerns only the nature of substantive review

of student academic standing.

18 See Pacific States Box & Basket Co. v. White, 296 U.S. 176

(1935) (on deference to administrative agencies.)

would not be based on exercise of professional judgment '”

within the limits of generally accepted professional stand-

ards. Despite the manifest differences between mental

patients and medical students, Youngberg also states the

proper standard for resolution of disputes over student

academic standing. A faculty determination about aca-

demic standing is presumptively valid. The presumption

may be overcome only if the faculty decision is such a

substantial departure from accepted professional judg-

ment, practice, or standards as to demonstrate that the

decision was not grounded on the exercise of professorial

discretion.” Youngberg stands for the proposition that

substantive due process review may be undertaken to pro-

tect students from arbitrary injury to their academic

standing, without excessive intrusion into the affairs of

state colleges and universities. We turn next to the

court’s role in examining the statement of reasons offered

by the institution for the adverse action taken against

the student.

19?The complaint concerning grading that is most frequently

brought to AAUP by faculty members involves the unilateral

alteration by an administrator at the institution of a grade deter-

mined by the course instructor. Under Younyberg, one might argue

that the administrator lacks requisite professional competence in

grading students in the particular course. Indeed, AAUP stand-

ards acknowledge the primacy of the faculty role in grading. See

page 4 supra. While not at issue in the instant case, we note that

the concept of judicial deference to academic judgments is grounded

on the special competence of faculty members in their substantive

areas. Unilateral administrative alteration of a grade attenuates

the basis for judicial deference to academic decisions. See San

Diego Community College Teachers Ass’n v. Governing Bd. of the

San Diego Community College Dist., No. 492817 (Calif. Superior

Ct., San Diego, Dec. 21, 1982) (grade unilaterally changed by ad-

ministration restored to grade originally determined by faculty

member).

2° As described above in the section on the interest of amicus,

AAUP plays a dominant role in the development of such standards.

Il SUBSTANTIVE DUE PROCESS IS SATISFIED IF

THE INSTITUTION ARTICULATES A SOUND

ACADEMIC REASON FOR ITS DISMISSAL OF

THE STUDENT

The limited substantive due process review which we

urge for student complaints over loss of academic stand-

ing requires only that the institution articulate a sound

academic reason for the adverse action taken. No ex-

haustive trial de novo, or scrutiny by the courts of ex-

amination papers and the like, would be necessary. The

institution’s obligation to explain its action flows from

several decisions of this Court and need not infringe aca-

demic freedom.”

Youngberg v. Romeo, supra, 367 U.S. 886 (1961),

strongly implies an obligation to provide reasons, with-

out which one could not determine whether the action

fell within the bounds of the exercise of professional dis-

cretion.**? In Cafeteria Workers v. McElroy, supra, 367

U.S. 886 (1961), the Court looked to the explanation

“announced” by the government and found it facially

legitimate. With respect to penal institutions, the Four-

teenth Amendment requires prison officials to explain why

they refused to allow an inmate facing disciplinary

charges to call certain witnesses. Ponte v. Real, 53

U.S.L.W. 4549 (U.S. May 21, 1985). A comprehensive

discussion of the obligation to provide reasons appears in

Dunlop v. Bachowski, 421 U.S. 560 (1975). Dunlop ad-

21 See generally R. Rabin, Job Security and Due Process: Moni-

toring Administrative Discretion Through a Reasons Requirement,

44 U. Cui. L. REv. 60 (1976). See also M. Garland, Deregulation

and Judicial Review, 98 Harv. L. REV. 507 (1985); T. M. Scanlon,

Due Process, in J. Pennock, ed., DUE PROcEss, NoMos XVIII 93, 97

(1977).

22 The 1966 Statement on Government of Colleges and Univer-

sities, quoted supra at 4, recognizes the professional role of

faculty in determining students’ progress in meeting the require-

ments for degrees, which are also to be set by the faculty.

dressed the scope of review under the Administrative

Procedure Act of a decision by the Secretary of Labor

not to file a civil action for redress of a union’s alleged

violations of the Labor-Management Reporting and Dis-

closure Act (LMRDA). The Secretary had exclusive au-

thority to file suit to set aside improper union elections;

a union member dissatisfied with the Secretary’s decision

not to pursue a complaint of election illegality to litiga-

tion filed suit against the Secretary. The Court first ex-

amined whether judicial review of the Secretary’s deci-

sion was available at all. Finding no Congressional in-

tent in the LMRDA to prohibit such review entirely, the

Court concluded that only review with a narrow and lim-

ited scope would comport with the objectives of the stat-

ute. The LMRDA enforcement mechanisms rely heavily

on the Secretary’s special expertise in union matters, an

expertise not shared by the judicial branch. The Court

drew two basic conclusions about the situation:

(1) since the statute relies upon the special knowl-

edge and discretion of the Secretary for the determi-

nation of both the probable violation and the prob-

able effect, clearly the reviewing court is not au-

thorized to substitute its judgment for the decision

of the Secretary not to bring suit; (2) therefore, to

enable the reviewing court intelligently to review the

Secretary’s determination, the Secretary must pro-

vide . . . a statement of reasons supporting his deter-

mination.

421 U.S. 571. These principles are readily transferable

to the instant case, as courts lack the expertise required

to evaluate students. A limited form of review may be

undertaken based upon a statement of reasons for the

action furnished by the institution. The reasons are en-

titled to great deference, as explained in Youngberg, 457

U.S. 307, provided that the action was based on the rea-

sonable exercise of academic judgment. In Dunlop, the

reviewing court’s role was described in similar terms:

Except in what must be the rare case, the court’s

review should be confined to examination of the “rea-

sons” statement, and the determination whether the

statement, without more, evinces that the Secretary’s

decision is so irrational as to constitute the decision

arbitrary and capricious.

421 U.S. at 572-3. The Court’s description of the “rare

case” justifying more extensive review included situa-

tions where the Secretary completely abrogated his en-

forcement authority, acted in a constitutionally discrimi-

natory manner, or reached a decision clearly in defiance

of his responsibilities. Jd. at 575. In each of these cir-

cumstances the Secretary’s reasons would also have failed

under the Youngberg standard, as the justification would

have been based on something other than the exercise of

the Secretary’s professional discretion. Floodgates of liti-

gation over the academic assessment of students will not

be opened under such a stringent standard of review.

Rare will be the situation in which a student can show

that the adverse academic decision did not rest upon some

reasonable exercise of professional discretion but rather

lacked any rational foundation.** But because the rare

instance of serious abuse can occur, the Fourteenth

Amendment requires limited judicial scrutiny of the in-

stitutional basis for the decision.

23 Changes in institutional policy which work to the disadvantage

of students may similarly require explanation. The court of appeals

focussed in the instant case on the differential treatment of re-

spondent Ewing, which the court found unjustified. As Justice

White observed in a different context in Motor Vehicles Mfr’s

Ass’n of the United States Farm Mut. Auto. Ins. Co., 463 U.S. 29,

42 (1983), “an agency changing its course by rescinding a rule

is obligated to supply a reasoned analysis for the change beyond

that which may be required when an agency does not act in the

first instance.” Ewing might argue in the instant case that the

University of Michigan apparently changed its rule allowing stu-

dents a second opportunity to sit for the National Board of Medical

Examiners test and that no sound academic reason for the change

was articulated.

Institutions may argue that the obligation to articulate

sound academic reasons for student dismissals violates

rights of academic freedom. Amicus AAUP, as the organ-

ization in the forefront of the defense of academic freedom,

does not agree. Analogies to statement of reasons in situa-

tions of nonreappointment of faculty members are in-

structive. AAUP standards call for the provision of

written notice of reasons for the nonrenewal of a faculty

appointment, upon request of the disappointed candi-

date.* The American Council on Education, an organiza-

tion representing over 1400 institutions of higher educa-

tion, has similarly called for candidates for faculty ad-

vancement to have “the opportunity to know and to ben-

efit from the deliberation of peers.” ** This requirement

of providing reasons upon request was expressly endorsed

in Gray v. Board of Higher Education, City of New York,

692 F.2d 901, 907 (2d Cir. 1982), a race discrimination

action in which the confidentiality of deliberations on the

nonrenewal of a faculty appointment was at issue. The

court in Gray concluded that the provision of a statement

of reasons for nonreappointment of a faculty member

would appropriately inhibit capricious decision-making,

and that the requirement of reasons was “consistent with

the goals of academic freedom.” Jd. at 909. In com-

mentary supporting the Association’s position concern-

ing the statement of reasons for faculty nonreappoint-

ment, a noted constitutional scholar drew an analogy

to providing reasons for students grades:

It may be a ‘nuisance’ to have to explain to a stu-

dent the basis on which we have assessed his work as

24 Statement on Procedural Standards in Faculty Dismissal Pro-

ceedings, AAUP PoLicY DOCUMENTS AND REPORTS 14, 16-8 (1984).

25 American Council on Education, “Self-Regulation Initiatives:

Guidelines for Colleges and Universities, Confidentiality of College

and University Faculty Personnel Files: Its Appropriate Role in

Institutional Affairs,” December, 1981.

“F,” but most of us have long since accepted that

obligation as part of our commitment.”

For an institution to be called upon to offer this explana-

tion in court need not be seen as an onerous burden or

one that threatens academic freedom interests.

Apart from the sovereign immunity issues, which we

do not address, the resolution of the case would seem to

turn in large part on the consistency and adequacy of

the explanations offered by the institution for its dis-

missal of respondent Ewing. The weight to be accorded

to the pamphlet, “On Becoming a Doctor,” construed in

light of past practice, is pivotal. The court of appeals’

factual finding that Ewing was “qualified” as the term

is used in the pamphlet is also important. Because the

courts below took markedly different positions on these

questions, amicus AAUP finds the factual record quite

unsettled as the case now stands in this Court. AAUP

suggests that the Court adopt the standard of substan-

tive due process review urged herein and then remand

the case for clarification of the facts and application of

the standard.*?7 Rescue Army v. Municipal Court of Los

Angeles, 331 U.S. 549, 584 (1947) (case should present

“the underlying constitutional issues in clear-cut and

concrete form”). See Dayton Board of Education v.

Brinkman, 483 U.S. 406, 421 (1977); Healy v. James,

26W. Van Alstyne, Furnishing Reasons for a Decision against

Reappointment: Legal Considerations, 62 AAUP BULL. 285 (Sum-

mer, 1976). We do not mean to suggest, however, that a student

challenging a single grade is entitled to the same degree of judicial

scrutiny as a student challenging his dismissal from registration.

27 We note that a court finding a substantive due process violation

in the academic dismissal] of a student should exercise great care in

formulating a remedy. Alternatives short of ordering reinstate-

ment should be preferred whenever possible. Remand to the

institution for review by a faculty committee, modification of the

student’s transcript, or, as in Ewing’s case, the administration of

a repeat examination are among the less intrusive alternatives.

408 U.S. 169, 194 (1972); Coleman v. Alabama, 399

U.S. 1 (1970).

CONCLUSION

For the foregoing reasons, amicus AAUP suggests that

the Court announce the standard of substantive due

process review described herein for cases involving in-

jury to student academic standing and remand the case

for further proceedings.

Respectfully submitted,