A nursing student makes several medication errors during the course of the semester and is unable to organize her work effectively. Although she has been offered remedial help from her instructor she does not improve. She receives an "F" as a clinical grade and is not allowed to graduate.
Failing a student based on a poor clinical performance causes concern for faculty and administrators. The potential for law suits often weighs heavily on the minds of faculty when the need to write a negative evaluation arises. Faculty can take measures to minimize these concerns.
The fifth and fourteenth Amendments of the United States Constitution provide the basis for due process. The fifth amendment places limitations on the federal government to assure due process to all in its actions. The fourteenth amendment extends this requirement to the states. This amendment has been the basis of many of the judicial actions in state supported colleges and universities. It is applicable to private institutions when federal monies are received under color of state law. The fourteenth amendment specifically states "no state shall. . . . deprive any person of life, liberty or property, without due process of law" (United States Constitution, Amendment 14).
There are two parts to due process a) substantive due process and b) procedural due process. Substantive due process requires that the intent of the law or rule be "examined for fairness and reasonableness" (Pollock, 1976). In other words, for example, there must be a direct and understandable relationship between the rule and the mission of the institution. Procedural due process refers to the steps used to guarantee justice and protect the rights of citizens. Dixon ? Alabama State Board of Education, 294 F. 2d 150 (1961), served as the landmark decision that afforded post-secondary students the guarantee of procedural due process in disciplinary action. The following safeguards were identified in Dixon as being necessary components of procedural due process:
1. Notice containing specific charges must be given.
2. A hearing should be provided giving the student opportunity to be heard and to hear his accusers. In Goss ? Lopez, 419 US 565, the court held that informal hearings would satisfy this dictate.
3. Arbitrary and capricious actions will not occur (Edwards, 1979).
While the above procedure extends to state supported colleges and universities the Judiciary has been reluctant to apply these same safeguards in cases of academic dismissals. "Academic dismissals remain the final bastion in the public school students battle to secure procedural due process protection'' (Academic dismissals . . . 1978). The courts have primarily adopted a laissez faire attitude toward cases involving academic dismissals. This non-interference is apparently motivated by the desire to avoid judicial interference into the educational process (Stanridge, 1978). The judiciary believes that, lacking expertise in the various educational specialties of post -secondary education, judges are unprepared to evaluate academic performance. Therefore, unless arbitrary or capricious conduct of the faculty can be demonstrated by the plaintiff the judiciary will maintain the standard of non-interference.
Thus, in many cases the courts are saying that in the instance of academic dismissals that even due process is not required. However, if the student can prove that she/he is being deprived of liberty or property rights by not being allowed to graduate, then the courts will agree that due process must be provided. As the various federal district courts have not been consistent in this finding it would be wise for all educators to be certain to provide due process in the event of academic dismissals.
The standard of non-interference by the judiciary has been consistent. In Gaspar ? Bruton, 513 F 2d 843 (1975), a practical nursing student filed suit against the school after being required to withdraw for failing the clinical component of a course. She had maintained a satisfactory classroom average. Gaspar had received several warnings and additional faculty guidance prior to being dismissed. She had been offered an opportunity to meet with faculty and administrators after the decision to fail Gaspar had been made. The courts agreed that Gaspar was constitutionally protected and was entitled to due process prior to her withdrawal. The court went on to say that she had in fact been afforded due process by the defendant school and upheld her dismissal.
Horowitz, in the Board of Curators of the University of Missouri ? Horowitz, 98 S Ct 948 (1978), was a medical student dismissed for clinical failure. While Horowitz had been offered remedial help and had had numerous conferences with faculty she had not been allowed the opportunity to meet with the promotions committee making the final decision to withdraw her from school. The District Court of Appeals ruled that Horowitz was at least entitled to full due process and therefore entitled to a chance for a hearing with the committee. However, the Supreme Court reversed that decision saying that Horowitz had been afforded more than adequate due process and that in fact due process may not even be required in academic dismissals. No definitive statement was made.
In Connelly, Jr. v University of Vermont and State Agricultural College, 244 F. Supp. 156 (1965), a third-year medical student filed suit after failing a clinical rotation. The student claimed that his performance clinically had been satisfactory and that the faculty acted in an arbitrary and capricious manner in failing him. Connelly was able to prove that a faculty member had told him several weeks before the end of the rotation that he would not receive a passing grade regardless of the quality of his work the remainder of the term. The courts determined that Connelly did have a cause of action because of the teacher's comment. Therefore, the student should have received due process, including a hearing with the promotions committee, to have an opportunity to state his view. The court would not rule on whether Connelly should have failed, only that a hearing must be set to provide him with due process.
Evaluating the non-cognitive aspects of student development is difficult. Clinical competence, interpersonal relations and professionalism are important characteristics of the professional. However, the grading of these behaviors is subjective. Certainly the faculty are uniquely qualified for this task and should not have the opinions of the judiciary forced upon them. However, assuring a student his procedural due process rights does not need to cause the faculty any great amount of difficulty.
While the doctrine of judicial non-interference in academia has been firmlyestablished, it would behoove school officials to carefully examine their procedures for evaluation. Due process is a concept based on fairness and reasonableness. School officials should want all students to feel that they have been treated fairly while attending the institution. Certain elements of fairness should be incorporated into the evaluation system to ensure due process.
1. Academic requirements for graduation should be clearly specified and published.
2. Standards for each course should be presented in writing at the outset of the course to each student. These should include specific methods of grading (the course and individual papers) and penalties for late work.
3. Objectives for each component of the course should be clearly stated behavioral actions. Avoid ambiguity.
4. A set procedure should be predetermined to ensure adequate notice to all students of weak or failing work. If a clinical component is part of the course then regular ongoing evaluation should be established throughout the semester. Faculty need to be certain to document all incidents clearly and in detail so that a cause of action for arbitrary or capricious behavior cannot be litigated successfully.
5. The student should have easy access to his evaluation during the semester.
6. A well-documented, orderly appeal procedure should be established. Any student should be given the opportunity, if he so desires, to meet with the faculty committee if dismissal is a possibility. Schools might want to consider adopting a specific additional form of evaluation for appeals using a third party. Perhaps a clinical consultant could be used who is familiar with the mission of the school.
7. Some form of campus hearing could be made available to the student seeking an appeal. The committee could consist of faculty and peers of the student.
8. Students should be allowed an appeal to the Dean, whose decision should be final.
Because of the increasing litigiousness of our society, faculty fear writing a negative evaluation on a student. If the above precautions are taken there should not be need for undue concern, but it should be realized that even when policies are designed to be fair, litigation cannot always be avoided. As has been shown, the courts have consistently maintained an attitude of judicial non-interference. The only requirement has been that schools provide procedural due process.
- Academic dismissals from state supported universities: A study in policy. Case Comment in, Valpairso University Law Review, 1978, 13, 18.
- Edwards, H. Higher Education and the Law. Cambridge, Massachusetts: IEM, 1979, p. 396.
- Pollock, C. Students' rights. American Journal of Nursing, 1976, 76(4), 601.
- Stanridge. R. Students' rights upon dismissal. UMKC Law Review. 1978, 47(2), 270.
- United States Constitution, Amendment XIV.