Perhaps because higher education was viewed as a unique establishment - not a business entity - prior to the 1970s, professional and graduate schools' dismissal of a student for either academic or clinical failure was not challenged in the courts. Perhaps an increase in all types of litigation since the 1970s has encouraged students to test such decisions.
Conceivably, because of the knowledge of court challenges, or fear from student threats of legal action, faculty often hesitate to fail a student because of poor clinical performance. However, despite a number of suits, Milam and Marshall (1987) state: "... federal and state case law strongly supports the faculty's freedom to evaluate student performance candidly and the institution's right to dismiss students who fail to meet institutional standards* (p.336).
The purpose of this article is to review some landmark cases in this area, to outline faculty legal responsibilities when teaching the student with a potential for clinical failure, and then to suggest what could be termed as good faculty practice guidelines when working with such a student.
The legal recourse afforded a student depends upon whether the student is attending a private or public institution. A student in a private entity does not have Constitutional protection under the 14th Amendment (" . . . nor shall any State deprive any person of life, liberty, or property, without due process of law"). Kaplin (1978) indicates that for a student in a private college to be protected under the 14th Amendment the court must find that the institution: (1) is acting as a government agent in performing a delegated governmental task; (2) is performing a function that is considered a governmental responsibility; and (3) obtains substantial resources from the government, and these resources must have "become so all pervasive that the government has become, in effect, a joint venturer in the recipient's enterprise"(Greeii.ya v. George Washington University, 1975). Unless the entity is included under one of these three categories, the student is not provided 14th Amendment constitutional protection. Private-school students who seek legal remedies must challenge the institution on other grounds such as breach of contract, discrimination, or violation of a legally recognized right or statute.
Although the courts are divided concerning the extent to which a catalog is an enforceable contract, they will generally require an institution to follow the applicable institutional procedures in place at the time of entrance into the program (Kwiatkowski v. Ithaca College, 1975; Woody ?. Burns, 1966). If an institution has a policy of student-initiated academic review, the student should be made aware of this policy and the fact documented. If the student does not begin the process, the institution cannot be found at fault (Yench u. Stockmar, 1973).
A student plaintiff from public institutions often brings charges against the college or university in federal court. The student will allege that the institution deprived him or her of the protection afforded under the 14th Amendment, i.e., that there was a violation of his or her liberty, property, or due process rights. According to Milam and Marshall (1987), the federal courts have not clearly established that either the property interest or liberty interest is involved in an academic dismissal but have reviewed the due process received by the student.
Due process required for academic failure, however, is less rigorous than due process for disciplinary dismissal; the courts recognize that it is not as appropriate for them to review academic judgments as factually based conclusions of misconduct.
In cases involving dismissal for clinical performance deficiencies, the critical issue is ensuring the student due process. Gaspor ?. Bruton (1975) was one of the first cases in which procedural due process was discussed involving a dismissed student. The student had been on probation for two months, had been informed that she would be dismissed if her deficiencies were not corrected, was notified of her dismissal at a joint conference with her instructors and the superintendent, and had been offered another conference with those persons involved in her dismissal. Both the trial and appellate courts upheld the dismissal. The appellate court found:
Gaspar was provided much more due process than that which we hold must be accorded in cases involving academic termination or suspension. We hold that school authorities, in order to satisfy due process prior to termination or suspension of a student for deficiencies in meeting minimum academic performance, need only advise that student with respect to such deficiencies in any form. All that is required is that the student be made aware prior to termination of his failure or impending failure to meet those standards (513 P.2d at 850-851).
Internal discussion of the student's performance may include perceptions regarding the student's intellectual ability or lack of time spent in preparation, but should focus on the student's inability to meet academic standards. The student needs to be included in these discussions and given the opportunity to respond. If the student is subsequently dismissed from the program, the decision must be based on an inability to meet performance standards. Perceptions regarding intellectual ability or level of preparation should not be discussed with anyone outside the immediate academic setting (Greenhill v. Bailey, 1975).
A landmark case with due process as the issue was Horowitz u Board of Curators of University of Missouri (1976). The student had been dismissed from medical school for inadequacies in patient and peer associations and clinical achievement, and poor hygiene, although her written examination grades were above average. The 8th Circuit found that the student had not received adequate due process in view of the fact that it would be "difficult or impossible for her to obtain employment in a medically related field or to enter another medical school." On appeal, however, the U.S. Supreme Court (Board of Curators of the University of Missouri v. Horowitz, 1978) found the "Respondent has been awarded at least as much due process as the Fourteenth Amendment requires," and that decision to dismiss Horowitz was "careful and deliberate" 98 S. Ct. at 952). Besides being notified of her poor performance, Horowitz was allowed to take special oral and practical exams administered by practicing physicians in the area. The physicians then notified the school of their findings. It was only after the additional clinical evaluations that the student was dismissed. The Supreme Court actually found that the school went beyond the protection afforded by 14th Amendment by allowing the independent physician evaluation to ensure that the faculty grading of her medical skills was correct.
Regents of the University of Michigan ?. Ewing (1985) strongly reaffirmed that faculty are best-suited to decide issues of academic performance. Ewing, a student in a six-year program that would culminate in both an undergraduate and a medicai degree, claimed that his dismissal from the program was arbitrary and capricious. The student had taken six years to complete what most students achieve in four and had failed part 1 of the NBME exam. The Promotion and Review Board, after considering Ewing's total record, would not let him continue in the program. At Ewing's request, the Board met with him to reconsider its decision. The decision was not reversed. Ewing then appealed to the Executive Committee on three separate occasions to review the Board's decision and each time the Board's decision was upheld.
The student then brought suit against the University in the U.S. District Court for the Eastern District of Michigan, 559 F. Supp. 791, claiming that he had a property interest in his continued enrollment, that the University had acted in an arbitrary manner, and that his due process rights were violated. To support his claim, Ewing presented evidence that he was the only student to whom the University had ever denied a chance to retake the exam. He also presented a medical school booklet showing that qualified students would be allowed to retake the examination. Ewing claimed that this was arbitrary as it violated the University's past practice. Ewing appealed the court's decision to the U.S. Court of Appeals for the 6th Circuit 742 F.2d 913, who reversed the lower court's ruling. The regents took the case to the Supreme Court who found:
The record unmistakably demonstrates that the decision to dismiss respondent was made conscientiously and with careful deliberation based on an evaluation of his entire academic career at the University . . . The narrow avenue for judicial review of the substance of academic decision precludes any conclusion that such decision was such a substantial departure from accepted academic norms as to demonstrate that the faculty did not exercise professional judgment (Regents of the University of Michigan v. Ewing, 106 S.Ct. 507  p. 513).
In a concurring opinion, Justice Powell found that not every property interest warrants a due process review and that continued enrollment is not such an interest (Regents of the University of Michigan v. Ewing, 1985).
Faculty Legal Obligations
Transferring court opinions to nursing programs shows that faculty in public programs have three legal requirements that must be met when working with a student who has the potential of failing clinically. First, when the institution has established procedures that dictate policies for student dismissal, these procedures must be rigorously followed. Second, the student must be notified of the reason for the dismissal and encouraged to follow any other academic review procedures contained in the catalog. Third, there should be no speculatory discussion of one's perceptions regarding the student's intellectual ability or lack of time spent in preparation to outside bodies.
Good Faculty Practice
The following faculty practice guidelines probably exceed anything the courts have required. However, they are good academic procedure and ensure fairness. These guidelines follow the procedures used in the Gasper and Horowitz cases; we have used them when working with clinically failing students and have found them to be effective.
Deficiencies in the clinical experience should be identified, discussed with the student, and documented as early as possible. At a minimum, the student should be counseled regarding the deficiencies and an effort made to redirect his or her efforts back to the requisite foundational knowledge or skill. Although this process may take several weeks, it may be sufficient to bring the performance to the required level. If the previous efforts are not sufficient, a plan should be written. The plan should include:
* clinical deficiencies (i.e., skill, problemsolving, and areas where the student's practice is unsafe) and identification of strategies to bring the student to the required level of performance;
* a statement that an isolated good or poor performance day will not constitute a passing or failing grade, but that continuous improvement and safe patient care is required; and
* a statement to the effect that the remedial work required by the plan does not supplant the student's satisfactory completion of the actual clinical course objectives by the end of the semester.
Both the student and the faculty member should sign and date the document.
At this time, the student may assert that the increased amount of supervision only increases his or her anxiety level and that this is the cause of poor performance. Referral to a stress management clinic or to another faculty member who is skilled in stress reduction techniques may be appropriate. The clinical faculty member should not attempt to assume the role of stress reduction counselor. The studentcounselor relationship must be open and unencumbered by the requirement to evaluate performance as satisfactory or unsatisfactory. Attempting to perform both roles for a failing student places the faculty member in direct conflict when unbiased and objective decision-making is required. The student should be reminded that the faculty member is ultimately responsible for patient safety and that to ensure this safety, closer student supervision is currently required.
During the subsequent clinical days, the faculty member needs to have feedback sessions with the student. Faculty need to keep factual and objective documentation of the student's performance for discussion, e.g., actual faculty questions asked and verbatim student responses and/ or description of how the student completed a skill. The faculty member should also document additional teaching strategies used. With open faculty-student communication, most students who do not improve will realize that they are not able to meet the clinical course objectives at this time and will either withdraw during the semester or accept a failing clinical grade at the end of the semester.
Careful documentation and clear communication with the student who continues to be clinically unsafe, however, may not insulate the faculty member from charges of unfair evaluation practices. The failing student will state that he or she is the victim of excessive expectations or a personality conflict with the faculty member. A student meeting with the course leader, coordinator, or associate dean should be the next step; the faculty member may or may not be present at this time. The course overseer should make it clear to the student that his or her role at this time is one of listener and clarifier, and that no judgment will be made unless the faculty member is present during the meeting. If the faculty member is not present, it is advisable to have an immediate follow-up meeting with the three parties.
During any group meeting, the overseer should act solely as a clarifier and help to prevent misconceptions. When all sides of the issue have been explored, the overseer should present a clear summary of the discussion. At this time the student, if the documentation shows continued unsafe practice, can be required to withdraw from the course. If the student's clinical practice is safe, but there is no evidence of attaining major clinical objectives, the student must be allowed to continue in the course. This is because course clinical objectives do not have to be met until the final clinical day. An outline of expectations should be made in writing, again with the understanding that the expectations are only a guide to help the student, and do not replace meeting the clinical objectives. A copy of the plan should be given to the student. This meeting also should be clearly documented.
In rare instances, if the student is in the last year of a program and persists with accusations of unfair treatment and the faculty member maintains the student is clinically unsafe, we have taken another step. The courts would probably not require this next phase but it follows the approach afforded Horowitz and ensures that the student has received more than the required constitutional due process. The course overseer or faculty member may suggest that a second faculty member observe the student for one or two days in the clinical area. Preferably, the second faculty member should have taught in the course, and be told that the observation is requested, for example, because of student difficulty with maintaining patient safety or an inability to problem-solve. The student should clearly understand that:
* the second evaluation necessitates close supervision;
* clinical safety and problem-solving ability will be evaluated according to the same course objectives;
* a decision regarding the student's retention in the course or clinical failure will be made by the course overseer after the second faculty documentation has been reviewed; and
* if the school has an academic review procedure the student should be offered this forum.
Documentation of this meeting should also be made.
Failing a student, particularly one near graduation, is always a difficult process for faculty and places the faculty member in the unenviable position of having to protect the public and yet give every opportunity for the student to demonstrate competency. If the preceding steps are followed, the faculty member can have confidence that anything that could have been done for the student has been done and that the student's rights have been protected.
- Board of Curators of the University of Missouri v. Horowitz, 98 S. Ct. 948 (1978).
- Ewing u Regents of the University of Michigan, 559 F.supp 791 (1983).
- Ewing u Regents of the University of Michigan, 742 F.2d 913 (6th Gir. 1984).
- Gaspar V. Bruton, 512 F.2d 843 (10th Cir. 1975).
- Greenhill v. Bailey, 519 F.2d 5 (8th Cir. 1975).
- Greenya v. George Washington University, 512 F.2d 536 (D.C. Cir. 1975) 561.
- Horowitz v. Board of Curators of University of Missouri, 538 F.2d 1317 (8th Cir. 1976).
- Kaplin, W.A. (1978). The law of higher education: Legal implications of administrative decision making. CA: Joesey-Bass.
- Kwiatkowski v. Ithaca College, 386 (N.Y.S.2d 973 [S.Ct. 1975]).
- Milam, S.D., & Marshall, R.D. (1987). Impact of regents of the University of Michigan v. Ewing on academic dismissals from graduate and professional schools. Journal of College and University Lam 13, 335-352.
- Regents of the University of Michigan v. Ewing, 106 S.Ct. 507 (1985).
- Woody u Burns, 188 So.2d 56 (FIa. 1966.
- Yench u Stockmar, 483 F2d 820 (10th Cir. 1973).