Journal of Nursing Education

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FACULTY FORUM 

Due Process Rights of Nursing Students in Cases of Misconduct

Kay Osinski, MS, RN, CCRN

Abstract

The issue of misconduct among nursing studente in higher education has received little attention until recently. Student misconduct in professional programs not only violates principles of integrity but also jeopardizes the lives and welfare of human beings (Daniel, Adams, & Smith, 1994). Therefore, misconduct by nursing students may substantially lower professional nursing practice standards, hurt the integrity of the academic nursing community, and damage the quality of the health care system (Jeffreys & Stier, 1998). At one time, students in postsecondary educational settings had few enforceable legal rights in academic institutions. Students risked suspension or dismissal if they challenged institutional decisions regarding academic and disciplinary actions (Brent, 2001). It is imperative that faculty understand students' rights in cases of misconduct and adhere to well-defined policies that ensure due process for all students.

Academic Misconduct

Misconduct can be categorized as either academic or disciplinary. Academic misconduct is based on grades and/or clinical performance (Gilmore, 1995). In lawsuits involving dismissals due to academic misconduct, courts are hesitant to provide student protection because they fear judicial intervention will jeopardize professional autonomy and scholarly integrity (Lallo, 1992). To be successful, students challenging academic dismissals must demonstrate substantial departure from accepted academic practice has occurred by the responsible faculty member or committee, or that faculty did not use competent professional judgment (Kaplin & Lee, 1995).

The courts have primarily assumed a laissez faire attitude toward academic dismissal cases unless arbitrary or capricious faculty behavior can be demonstrated (Spink, 1983). Due process for academic misconduct requires that students be adequately notified about their academic performance, including the deficiencies that must be improved and within what timeframes, to allow their potential continuation in the program (Brent, 2001).

Disciplinary Misconduct

Disciplinary misconduct involves students' failure to comply with a code of conduct or the university's rules and regulations. Examples include cheating, plagiarism, use of alcoholic beverages on campus, and unethical conduct not consistent with the profession's standards. Dismissals for disciplinary misconduct are subject to different rules than academic dismissals (Brent, 2001).

With disciplinary misconduct, students must receive oral or written notices of charges that specify the rule or policy that allegedly was violated. The allegations of misconduct should be adequately detailed so students can present a defense against the charges. The minimiinn due process action required in disciplinary misconduct is that students be granted the opportunity to speak on their own behalf and provide an explanation. Courts generally allow students to hear evidence against them and to present oral testimony, or at a minimum, written statements from witnesses (Kaplin & Lee, 1995). More stringent requirements are needed for cases that handle violations of rules of conduct or those involving disciplinary misconduct. Because due process requirements for academic and disciplinary misconduct vary, it is crucial to correctly identify which type of misconduct is involved in a particular situation (Kaplin & Lee, 1995).

Due Process Rights

The United States Constitution provides the foundation for due process rights. The Fifth Amendment mandates that the federal government assure due process rights to all citizens. The Fourteenth Amendment states that no person may be deprived of life, liberty, or property without due process. State-supported universities and private institutions that receive federal monies are bound to these constitutional standards (Kaplin & Lee, 1995).

Due process usually is defined by the courts as what is fair under the prevailing circumstances (Brent, 2001). A public institution usually is associated with the state government and, therefore, is supported by state revenues. In a public institution, the state and federal governments' power over students and their rights is limited by the U.S. Constitution. In contrast, private universities that…

The issue of misconduct among nursing studente in higher education has received little attention until recently. Student misconduct in professional programs not only violates principles of integrity but also jeopardizes the lives and welfare of human beings (Daniel, Adams, & Smith, 1994). Therefore, misconduct by nursing students may substantially lower professional nursing practice standards, hurt the integrity of the academic nursing community, and damage the quality of the health care system (Jeffreys & Stier, 1998). At one time, students in postsecondary educational settings had few enforceable legal rights in academic institutions. Students risked suspension or dismissal if they challenged institutional decisions regarding academic and disciplinary actions (Brent, 2001). It is imperative that faculty understand students' rights in cases of misconduct and adhere to well-defined policies that ensure due process for all students.

Academic Misconduct

Misconduct can be categorized as either academic or disciplinary. Academic misconduct is based on grades and/or clinical performance (Gilmore, 1995). In lawsuits involving dismissals due to academic misconduct, courts are hesitant to provide student protection because they fear judicial intervention will jeopardize professional autonomy and scholarly integrity (Lallo, 1992). To be successful, students challenging academic dismissals must demonstrate substantial departure from accepted academic practice has occurred by the responsible faculty member or committee, or that faculty did not use competent professional judgment (Kaplin & Lee, 1995).

The courts have primarily assumed a laissez faire attitude toward academic dismissal cases unless arbitrary or capricious faculty behavior can be demonstrated (Spink, 1983). Due process for academic misconduct requires that students be adequately notified about their academic performance, including the deficiencies that must be improved and within what timeframes, to allow their potential continuation in the program (Brent, 2001).

Disciplinary Misconduct

Disciplinary misconduct involves students' failure to comply with a code of conduct or the university's rules and regulations. Examples include cheating, plagiarism, use of alcoholic beverages on campus, and unethical conduct not consistent with the profession's standards. Dismissals for disciplinary misconduct are subject to different rules than academic dismissals (Brent, 2001).

With disciplinary misconduct, students must receive oral or written notices of charges that specify the rule or policy that allegedly was violated. The allegations of misconduct should be adequately detailed so students can present a defense against the charges. The minimiinn due process action required in disciplinary misconduct is that students be granted the opportunity to speak on their own behalf and provide an explanation. Courts generally allow students to hear evidence against them and to present oral testimony, or at a minimum, written statements from witnesses (Kaplin & Lee, 1995). More stringent requirements are needed for cases that handle violations of rules of conduct or those involving disciplinary misconduct. Because due process requirements for academic and disciplinary misconduct vary, it is crucial to correctly identify which type of misconduct is involved in a particular situation (Kaplin & Lee, 1995).

Due Process Rights

The United States Constitution provides the foundation for due process rights. The Fifth Amendment mandates that the federal government assure due process rights to all citizens. The Fourteenth Amendment states that no person may be deprived of life, liberty, or property without due process. State-supported universities and private institutions that receive federal monies are bound to these constitutional standards (Kaplin & Lee, 1995).

Due process usually is defined by the courts as what is fair under the prevailing circumstances (Brent, 2001). A public institution usually is associated with the state government and, therefore, is supported by state revenues. In a public institution, the state and federal governments' power over students and their rights is limited by the U.S. Constitution. In contrast, private universities that receive fiscal support from private funding do not have the same requirement to abide by constitutional limitations. Even so, faculty in private institutions cannot act in an arbitrary, capricious, or discriminatory manner when making decisions about students (Brent, 2001).

Procedural Due Process

To understand students' rights, one must understand the two major categories of constitutional due process - procedural due process and substantive due process (Gilmore, 1995). Procedural due process involves the steps used to make a decision. It requires that individuals whose rights are affected be entitled to appropriate notice and a hearing. Courts abided by a strict policy of not intervening in university affairs until the 1961 Dixon v. Alabama State Board of Education case (Lallo, 1992). The United States Court of Appeals found that students who were expelled for engaging in an off-campus demonstration had been denied due process because they did not receive a hearing or notice of the charges. Due process rights require providing notice and the opportunity to be heard, even if the interview is informally held with an administrative authority (LaUo, 1992).

In 1975, the United States Supreme Court affirmed due process rights of students in disciplinary cases in public institutions in Goss v. Lopez. Public high school students were suspended for 10 days for disciplinary reasons. The U.S. Supreme Court held that these students were entitled to due process rights because they have recognizable liberty and property interests in their education. Again, the due process protection to students included their rights to be notified of charges and to have a hearing. Several lower courts have used the U.S. Supreme Court's recognition of property and liberty interest in education to extend protection to students in higher education (Lallo, 1992).

In 1996, in ReMy v. Daly, a medical student was dismissed from a university for cheating. During the final examination in a medical pharmacology course, two of the course professors suspected that ReUIy was copying from another student's paper. When the two students' papers were compared, the first 7 pages were almost identical. When a statistician advised that the chance of the two students having the same incorrect answers on their multiplechoice questions was one in 200,000, the professor graded Reilly's examination with an "F." A letter was sent to the student explaining the professors' suspicions about her cheating and the statistical probabUities that supported their conclusion (Kaplin & Lee, 1997).

ReilIy was permitted to have a hearing before the appropriate committee to review the charges. She also was permitted to bring an attorney and to present her version of the situation. The committee recommended that ReUIy be dismissed from medical school, and the Dean confirmed their recommendation (Kaplin & Lee, 1997). Reilly filed a lawsuit charging that she had been denied due process rights because she had not been allowed to question the course professors at the hearing. She also claimed that "the appearance of cheating" was a vague aUegation, and that the committee had failed to use a "clear and convincing" standard of proof (Kaplin & Lee, 1997, p. 150). The court found that ReUIy did not have the right to cross-examine her accusers, that she had been made aware of her status with the school, and that she had been provided an opportunity to discuss the situation with her professors (Kaplin & Lee, 1997).

In the University of Missouri v. Horowitz case (Spink, 1983), a medical student was dismissed from a state institution for clinical faUure. She had been offered remedial help and had several conferences with faculty, but she had not been given the opportunity to meet with the committee that made the final decision for dismissal. The District Court of Appeals ruled that Horowitz should have been afforded fuU due process, including an opportunity for a hearing with the committee involved. However, the decision later was reversed by the Supreme Court, which ruled that Horowitz had been afforded more than adequate due process and that due process may not be required in academic dismissals (Spink, 1983).

In 1975, the case of Gaspar v. Bruton involved a practical nursing student who had been dismissed from school for unsatisfactory performance in the clinical portion of a course, after completing more than two thirds of the nursing program. Gaspar, who was on probation for 2 months, was informed that she would be dismissed if certain deficiencies were not corrected. When the deficiencies were not corrected, Gaspar was told in a conference with some of her instructors that she was being dismissed. Gaspar subsequently was offered a second conference to question the staff and faculty who had participated in the dismissal decision. She contended she should have been allowed to challenge the evidence supporting the dismissal, as well as to present evidence in her own defense. However, the appellate courts disagreed, claiming that Gaspar had been afforded greater due process consideration than usually is required in academic dismissals. To satisfy due process responsibilities in these cases, university authorities need only advise the student that the deficiencies exist. In other words, students need to be informed of their impending failure to meet stated standards (Kaplin & Lee, 1995).

Substantive Due Process

Whereas procedural due process involves the steps used in making decisions about dismissal, substantive due process concerns whether or not the decision was made in an arbitrary or careless manner. Students who chaUenge academic decisions on this basis often allege that decisions were made in bad faith or were arbitrary and capricious. In 1985, in regents of the University of Michigan v. Swing, the U.S. Supreme Court stated that no substantive due process violation occurs when there is "no substantial departure from accepted academic norms as to demonstrate that the faculty did not exercise professional judgment" (LaUo, 1992, p. 582).

In this case, Ewing, a medical student whose academic performance had been mediocre throughout medical school, eventually was dismissed due to poor academic performance. Ewing claimed that the university violated bis constitutional rights by refusing to allow him to retake the National Board of Medical Examiners examination, whUe other students had been allowed to do so. The court found that the university had not acted arbitrarily in dismissing Ewing from the program, and the faculty's decision had been made conscientiously with careful deliberation (Kaplin & Lee, 1995).

In 1987, in Clements v. Hassau County, a nursing student was dismissed during her last year of a community coUege program for "unsafe clinical behavior" and "failure to maintain cleanliness" (Parrott, 1993, p. 16). After she exhausted the college's grievance procedure and the faculty upheld the dismiseal, Clements filed a suit, claiming that faculty had prevented her graduation by evaluating her in "bad faith." The U.S. Court of Appeals said it would not intervene unless bad faith or ill will was demonstrated, so they refused to overturn the decision (Parrott, 1993, p. 17).

In 1986, another case alleging arbitrary and capricious decision making involved a student nurse in Morin v. Cleveland Metro General Hospital. Morin was dismissed during her senior year of nursing school for "unsafe clinical practice" (Parrott, 1993, p. 17). She appealed the instructor's decision, but the admission's committee upheld the instructor's decision, and faculty voted unanimously to dismiss her. Morin filed a suit, declaring that her instructor was "hostile" toward her and that her dismissal was "arbitrary and capricious." The university's decision was upheld (Parrott, 1993, p. 17).

Contract Theory

Students' rights at private institutions are based on an implied contract with the university that if students meet the prescribed terms, they will obtain a degree. The university is obligated to refrain from any arbitrary expulsion or denial of a degree. If students can demonstrate that a decision was motivated by bad faith or was an arbitrary or capricious action, they are entitled to a judicial review (Lallo, 1992).

In 1997, in Bruner v. Petersen, Bruner, a nursing student, alleged that the University of Alaska had breached its contract with him by requiring him to take a critical thinking course to be eligible to repeat a nursing course he had failed due to inadequate critical thinking abilities. The committee involved upheld that Bruner could not retake the class unless he completed a recommended critical thinking course with a grade of "C or higher. Bruner argued the critical thinking class was not listed in the course catalog as a required course to earn a nursing degree, and the course catalog constituted a binding contract between him and the university. After exhausting the grievance procedure outlined in the course catalog, Bruner brought suit in Superior Court, which affirmed the university's decision. Bruner then appealed to the Supreme Court of Alaska. The Supreme Court held that the course catalog and handbook did not promise Bruner that his requirements for graduation would be limited to the classes listed as required for his major and that further academic conditions may be imposed on a student who has failed a class (Stoner & Schupansky, 1998).

Litigation in Nursing Education

Helms and Weiler (1991) studied the types of litigation occurring in nursing education programs. Of the 24 reported cases since 1961, baccalaureate nursing programs were sued by students most often. In addition, almost half of the nursing school litigation involved students, whereas only 27% of litigation concerning posteecondary programs in general involved students. Nursing students appear slightly more likely to sue, and nursing programs appear slightly more likely to lose cases than other posteecondary education programs. The results of the study suggested nurse educators must pay attention to the procedures used when handling student dismissals (Helms & Weiler, 1991).

Operationalizing Due Process in Nursing Schools

University policies and procedures must be effective in safeguarding due process for all students. Faculty and administrators must ensure policies are up to date, fair, and provide due process for all students. Separate policies should exist for academic and disciplinary misconduct because more stringent due process must be provided to students in the latter case. It is advisable to have an attorney review policies prior to final faculty approval. All students must be treated consistently, so a precedent is not set that potentially could lead to a litigious situation.

University Course Catalogs

University course catalogs should list all relevant policies, including grade appeals and grievance procedures. Relevant policies should be made available to students prior to admission to a program. Any changes in policies must be communicated to enrolled students as quickly as possible (Helms & Weiler, 1991). The catalog should be available to all students and reviewed with them as part of their orientation. Some nursing schools require students sign a form stating they have read the catalog and will comply with all policies.

Course Requirements

A course syllabus should be reviewed with all students during orientation to the course. The syllabus should include all course requirements, clearly stated objectives, due dates for all tests and assignments, the grading scale, and methods used to evaluate performance.

Evaluation

Course evaluation methods should be clearly stated in the course syllabus. All students should have ongoing access to faculty to discuss their progress in the course. Tests and assignments should be returned as promptly as possible, with sufficient written feedback to provide a rationale for the assigned grade. Adequate notice should be given to students for unsatisfactory or failing work.

For clinical evaluations, the evaluation tool should be reviewed with students during the first day of class. Ongoing feedback from faculty regarding student performance is imperative. It is helpful to document students' clinical performance on a daily or weekly basis and to provide students with their performance assessments. Faculty must document all incidents in detail to avoid potential litigation based on arbitrary or capricious behavior (Spink, 1983). Whether clinical courses are graded as pass/fail or with a letter grade, students' final evaluation should never be a surprise to them. If students are not meeting clinical outcomes, they must be notified, told how to improve their deficiencies, given timeframes within which their improvement is expected, and be informed of the consequences if the required improvement does not occur (Brent, 2001).

Faculty must ensure students understand their individual states' nurse practice acts and all relevant institutional policies and procedures. Faculty also are responsible for assigning students to patients for whom they are prepared to deliver safe, quality care. The amount of supervision faculty must provide is based on many variables, including students' knowledge and performance levels and the complexity of the assigned patient.

Grievance Procedure

As mentioned above, the grievance procedure should be clearly outlined in the university course catalog. Steps of the grievance procedure should be easy to understand and clearly outlined, including specific timeframes for each step. The first step should require that students meet with the involved faculty member in an attempt to resolve the issue. Both the student complaint and faculty response should be made in writing. If the issue is not resolved at the faculty level, the student should have the right to meet with a designated committee that includes faculty and at least one student representative. Students should be allowed to appeal to the Dean, who makes the final decision (Spink, 1983). It is imperative during grievance procedures that faculty follow the written policies exactly, as well as maintain confidentiality regarding student issues.

Litigation cannot always be prevented, even when policies are fair, clearly stated, and consistently foUowed. Periodic review and revision, and communication of policies affecting students should be conducted. Careful monitoring and discussion of basic issues of professional performance at all levels may be the most important method of preventing litigation (Helms & WeUer, 1991).

Conclusion

Misconduct in professional programs violates principles of integrity and can lower the standards of nursing practice, placing the university in a litigious situation. Courts have maintained an academic deference approach to student dismissals and consistently have favored the university in student challenges to dismissals. However, faculty must be able to differentiate between academic and disciplinary misconduct because due process implications differ between the two.

Procedural due process involves the steps used to make a decision. Substantive due process involves the fairness and reasonableness of that decision. Students have been provided adequate due process as long as the decisions made were not arbitrary or capricious. Due process rights in cases of disciplinary misconduct are more extensive and generally include notice and a hearing to aUow students to contest any allegations. Policies must be periodically reviewed, revised, and clearly communicated to aU students. Above all, faculty must recognize students' rights and treat them in a fair, consistent, and nondiscriminatory manner.

References

  • Brent, N. (2001). Nurses and the law. A guide to principles and applications. Philadelphia: Saunders.
  • Daniel, L., Adame, B., & Smith, N. (1994). Academic misconduct among nursing students: A multivariate investigation. Journal of Professional Nursing, 10, 278-288.
  • Gilmore, P. (1995). Students' rights in a public institution. TAe Association of Black Nursing Faculty Journal, 6, 47-50.
  • Helms, L., & Weiler, K. (1991). Suing programs of nursing education. Nursing Outlook, 39, 158-161.
  • Jeffreys, M., & Stier, L. (1998). Student academic dishonesty. Imprint, 45(3), 48-49.
  • Kaplin, W., & Lee, B. (1995). The law of higher education. (3rd ed.) San Francisco: JosseyBass.
  • Kaplin, W., & Lee, B. (1997). Supplement: The law of higher education. San Francisco: Jossey-Bass.
  • Lallo, D. (1992). Student challenges to grades and academic dismissals: Are they losing battles? Journal of College and University Law, 18, 577-593.
  • Parrott, T. (1993). Dismissal for clinical deficiencies. Nurse Educator, 18(6), 14-17.
  • Spink, L. (1983). Due process in academic dismissals. Journal of Nursing Education, 22, 305-306.
  • Stoner, E., & Schupansky, S. (1998). Disciplinary and academic decisions pertaining to students: A review of the 1997 judicial decisions. Journal of College and University Laws, 25, 293-312.

10.3928/0148-4834-20030201-05

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