|||SUPREME COURT OF THE UNITED STATES
435 U.S. 78, 98 S. Ct. 948, 55 L. Ed. 2d 124
|||March 1, 1978
|||BOARD OF CURATORS OF THE UNIVERSITY OF MISSOURI ET AL.
|||CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
|||Marvin E. Wright argued the cause for petitioners. With him on the brief
were Jackson A. Wright and Fred Wilkins.
|||Arthur A. Benson II argued the cause and filed a brief for respondent.*
|||Burger, Brennan, Stewart, White, Marshall, Blackmun, Powell, Rehnquist,
|||The opinion of the court was delivered by: Rehnquist
|||The academic performance of students at the University of Missouri-Kansas
City Medical School is periodically assessed by the Council of Evaluation,
a faculty-student body that can recommend various actions, including probation
and dismissal; its recommendations are reviewed by the faculty Coordinating
Committee, with ultimate approval by the Dean. After several faculty members
had expressed dissatisfaction with the clinical performance of respondent
medical student during a pediatrics rotation, the Council recommended that
she be advanced to her final year on a probationary basis. Following further
faculty dissatisfaction with respondent's clinical performance that year,
the Council in the middle of the year again evaluated her academic progress
and concluded that she should not be considered for graduation in June of
that year and that, absent "radical improvement," she be dropped
as a student. As an "appeal" of that decision, respondent was
allowed to take examinations under the supervision of seven practicing physicians,
only two of whom thereafter recommended that respondent be allowed to graduate
on schedule. Two others recommended that she be dropped from the school
immediately; and three recommended that she not be allowed to graduate as
scheduled but that she be continued on probation. The Council then reaffirmed
its prior position. At a subsequent meeting, having noted that respondent's
recent surgery rotation had been rated "low-satisfactory," the
Council concluded that, barring reports of radical improvement, respondent
should not be allowed to re-enroll; and when a report on another rotation
turned out to be negative, the Council recommended that respondent be dropped.
When notified of that decision, which the Coordinating Committee and Dean
had approved, respondent appealed to the Provost, who after review sustained
the decision. Respondent thereafter brought this action against petitioner
officials under 42 U.S.C. § 1983, contending, inter alia, that she had not
been accorded due process prior to her dismissal. The District Court, after
a full trial, concluded that respondent had been afforded all rights guaranteed
by the Fourteenth Amendment. The Court of Appeals reversed. Held:
|||1. The procedures leading to respondent's dismissal for academic deficiencies,
under which respondent was fully informed of faculty dissatisfaction with
her clinical progress and the consequent threat to respondent's graduation
and continued enrollment, did not violate the Due Process Clause of the
Fourteenth Amendment. Dismissals for academic (as opposed to disciplinary)
cause do not necessitate a hearing before the school's decisionmaking body.
Goss v. Lopez, 419 U.S. 565, distinguished. Pp. 84-91.
|||2. Though respondent contends that the case should be remanded to the
Court of Appeals for consideration of her claim of deprivation of substantive
due process, this case, as the District Court correctly concluded, reveals
no showing of arbitrariness or capriciousness that would warrant such a
Disposition, even if it were deemed appropriate for courts to review under
an arbitrariness standard an academic decision of a public educational institution.
|||538 F.2d 1317, reversed.
|||REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J.,
and STEWART, POWELL, and STEVENS, JJ., joined, and in Parts I, II-A, and
III of which WHITE, J., joined. POWELL, J., filed a Concurring opinion,
post, p. 92. WHITE, J., filed an opinion Concurring in part and Concurring
in the judgment, post, p. 96. MARSHALL, J., filed an opinion Concurring
in part and Dissenting in part, post, p. 97. BLACKMUN, J., filed an opinion
Concurring in part and Dissenting in part, in which BRENNAN, J., joined,
post, p. 108.
|||MR. JUSTICE REHNQUIST delivered the opinion of the Court.
|||Respondent, a student at the University of Missouri-Kansas City Medical
School, was dismissed by petitioner officials of the school during her final
year of study for failure to meet academic standards. Respondent sued petitioners
under 42 U.S.C. § 1983 in the United States District Court for the Western
District of Missouri alleging, among other constitutional violations, that
petitioners had not accorded her procedural due process prior to her dismissal.
The District Court, after conducting a full trial, concluded that respondent
had been afforded all of the rights guaranteed her by the Fourteenth Amendment
to the United States Constitution and dismissed her complaint. The Court
of Appeals for the Eighth Circuit reversed, 538 F.2d 1317 (1976), and a
petition for rehearing en banc was denied by a divided court. 542 F.2d 1335
(1976). We granted certiorari, 430 U.S. 964, to consider what procedures
must be accorded to a student at a state educational institution whose dismissal
may constitute a deprivation of "liberty" or "property"
within the meaning of the Fourteenth Amendment. We reverse the judgment
of the Court of Appeals.
|||Respondent was admitted with advanced standing to the Medical School in
the fall of 1971. During the final years of a student's education at the
school, the student is required to pursue in "rotational units"
academic and clinical studies pertaining to various medical disciplines
such as obstetrics-gynecology, pediatrics, and surgery. Each student's academic
performance at the School is evaluated on a periodic basis by the Council
on Evaluation, a body composed of both faculty and students, which can recommend
various actions including probation and dismissal. The recommendations of
the Council are reviewed by the Coordinating Committee, a body composed
solely of faculty members, and must ultimately be approved by the Dean.
Students are not typically allowed to appear before either the Council or
the Coordinating Committee on the occasion of their review of the student's
|||In the spring of respondent's first year of study, several faculty members
expressed dissatisfaction with her clinical performance during a pediatrics
rotation. The faculty members noted that respondent's "performance
was below that of her peers in all clinical patient-oriented settings,"
that she was erratic in her attendance at clinical sessions, and that she
lacked a critical concern for personal hygiene. Upon the recommendation
of the Council on Evaluation, respondent was advanced to her second and
final year on a probationary basis.
|||Faculty dissatisfaction with respondent's clinical performance continued
during the following year. For example, respondent's docent, or faculty
adviser, rated her clinical skills as "unsatisfactory." In the
middle of the year, the Council again reviewed respondent's academic progress
and concluded that respondent should not be considered for graduation in
June of that year; furthermore, the Council recommended that, absent "radical
improvement," respondent be dropped from the school.
|||Respondent was permitted to take a set of oral and practical examinations
as an "appeal" of the decision not to permit her to graduate.
Pursuant to this "appeal," respondent spent a substantial portion
of time with seven practicing physicians in the area who enjoyed a good
reputation among their peers. The physicians were asked to recommend whether
respondent should be allowed to graduate on schedule and, if not, whether
she should be dropped immediately or allowed to remain on probation. Only
two of the doctors recommended that respondent be graduated on schedule.
Of the other five, two recommended that she be immediately dropped from
the school. The remaining three recommended that she not be allowed to graduate
in June and be continued on probation pending further reports on her clinical
progress. Upon receipt of these recommendations, the Council on Evaluation
reaffirmed its prior position.
|||The Council met again in mid-May to consider whether respondent should
be allowed to remain in school beyond June of that year. Noting that the
report on respondent's recent surgery rotation rated her performance as
"low-satisfactory," the Council unanimously recommended that "barring
receipt of any reports that Miss Horowitz has improved radically, not be
allowed to re-enroll in the... School of Medicine." The Council delayed
making its recommendation official until receiving reports on other rotations;
when a report on respondent's emergency rotation also turned out to be negative,
the Council unanimously reaffirmed its recommendation that respondent be
dropped from the school. The Coordinating Committee and the Dean approved
the recommendation and notified respondent, who appealed the decision in
writing to the University's Provost for Health Sciences. The Provost sustained
the school's actions after reviewing the record compiled during the earlier
|||To be entitled to the procedural protections of the Fourteenth Amendment,
respondent must in a case such as this demonstrate that her dismissal from
the school deprived her of either a "liberty" or a "property"
interest. Respondent has never alleged that she was deprived of a property
interest. Because property interests are creatures of state law, Perry v.
Sindermann, 408 U.S. 593, 599-603 (1972), respondent would have been required
to show at trial that her seat at the Medical School was a "property"
interest recognized by Missouri state law. Instead, respondent argued that
her dismissal deprived her of "liberty" by substantially impairing
her opportunities to continue her medical education or to return to employment
in a medically related field.
|||The Court of Appeals agreed, citing this Court's opinion in Board of Regents
v. Roth, 408 U.S. 564 (1972). *fn1
In that case, we held that the State had not deprived a teacher of any liberty
or property interest in dismissing the teacher from a non-tenured position,
but noted: S
|||" here is no suggestion that the State, in declining to re-employ
the respondent, imposed on him a stigma or other disability that foreclosed
his freedom to take advantage of other employment opportunities. The State,
for example, did not invoke any regulations to bar the respondent from all
other public employment in state universities." Id., at 573.I
|||We have recently had an opportunity to elaborate upon the circumstances
under which an employment termination might infringe a protected liberty
interest. In Bishop v. Wood, 426 U.S. 341 (1976), we upheld the dismissal
of a policeman without a hearing; we rejected the theory that the mere fact
of dismissal, absent some publicizing of the reasons for the action, could
amount to a stigma infringing one's liberty: S
|||"In Board of Regents v. Roth, 408 U.S. 564, we recognized that the
nonretention of an untenured college teacher might make him somewhat less
attractive to other employers, but nevertheless concluded that it would
stretch the concept too far 'to suggest that a person is deprived of "liberty"
when he simply is not rehired in one job but remains as free as before to
seek another.' Id., at 575. This same Conclusion applies to the discharge
of a public employee whose position is terminable at the will of the employer
when there is no public disclosure of the reasons for the discharge.
|||"In this case the asserted reasons for the City Manager's decision
were communicated orally to the petitioner in private and also were stated
in writing in answer to interrogatories after this litigation commenced.
Since the former communication was not made public, it cannot properly form
the basis for a claim that petitioner's interest in his 'good name, reputation,
honor, or integrity' was thereby impaired." Id., at 348 (footnote omitted).I
|||The opinion of the Court of Appeals, decided only five weeks after we
issued our opinion in Bishop, does not discuss whether a state university
infringes a liberty interest when it dismisses a student without publicizing
allegations harmful to the student's reputation. Three Judges of the Court
of Appeals for the Eighth Circuit Dissented from the denial of rehearing
en banc on the ground that "the reasons for Horowitz's dismissal were
not released to the public but were communicated to her directly by school
officials." Citing Bishop, the Judges concluded that "bsent such
public disclosure, there is no deprivation of a liberty interest."
542 F.2d, at 1335. Petitioners urge us to adopt the view of these Judges
and hold that respondent has not been deprived of a liberty interest.
|||We need not decide, however, whether respondent's dismissal deprived her
of a liberty interest in pursuing a medical career. Nor need we decide whether
respondent's dismissal infringed any other interest constitutionally protected
against deprivation without procedural due process. Assuming the existence
of a liberty or property interest, respondent has been awarded at least
as much due process as the Fourteenth Amendment requires. The school fully
informed respondent of the faculty's dissatisfaction with her clinical progress
and the danger that this posed to timely graduation and continued enrollment.
The ultimate decision to dismiss respondent was careful and deliberate.
These procedures were sufficient under the Due Process Clause of the Fourteenth
Amendment. We agree with the District Court that respondent S
|||"was afforded full procedural due process by the . In fact, the Court
is of the opinion, and so finds, that the school went beyond [constitutionally
required] procedural due process by affording the opportunity to be examined
by seven independent physicians in order to be absolutely certain that their
grading of the in her medical skills was correct." App. 47.I
|||In Goss v. Lopez, 419 U.S. 565 (1975), we held that due process requires,
in connection with the suspension of a student from public school for disciplinary
reasons, "that the student be given oral or written notice of the charges
against him and, if he denies them, an explanation of the evidence the authorities
have and an opportunity to present his side of the story." Id., at
581. The Court of Appeals apparently read Goss as requiring some type of
formal hearing at which respondent could defend her academic ability and
performance. *fn2 All that Goss
required was an "informal give-and-take" between the student and
the administrative body dismissing him that would, at least, give the student
"the opportunity to characterize his conduct and put it in what he
deems the proper context." Id., at 584. But we have frequently emphasized
that "he very nature of due process negates any concept of inflexible
procedures universally applicable to every imaginable situation." Cafeteria
Workers v. McElroy, 367 U.S. 886, 895 (1961). The need for flexibility is
well illustrated by the significant difference between the failure of a
student to meet academic standards and the violation by a student of valid
rules of conduct. This difference calls for far less stringent procedural
requirements in the case of an academic dismissal. *fn3
|||Since the issue first arose 50 years ago, state and lower federal courts
have recognized that there are distinct differences between decisions to
suspend or dismiss a student for disciplinary purposes and similar actions
taken for academic reasons which may call for hearings in connection with
the former but not the latter. Thus, in Barnard v. Inhabitants of Shelburne,
216 Mass. 19, 102 N.E. 1095 (1913), the Supreme Judicial Court of Massachusetts
rejected an argument, based on several earlier decisions requiring a hearing
in disciplinary context, that school officials must also grant a hearing
before excluding a student on academic grounds. According to the court,
disciplinary cases have S
|||"no application.... Misconduct is a very different matter from failure
to attain a standard of excellence in studies. A determination as to the
fact involves investigation of a quite different kind. A public hearing
may be regarded as helpful to the ascertainment of misconduct and useless
or harmful in finding out the truth as to scholarship." Id., at 22-23,
102 N.E., at 1097.I
|||A similar Conclusion has been reached by the other state courts to consider
the issue. See, e.g., Mustell v. Rose, 282 Ala. 358, 367, 211 So. 2d 489,
498, cert. denied, 393 U.S. 936 (1968); cf. Foley v. Benedict, 122 Tex.
193, 55 S.W. 2d 805 (1932). Indeed, until the instant decision by the Court
of Appeals for the Eighth Circuit, the Courts of Appeals were also unanimous
in concluding that dismissals for academic (as opposed to disciplinary)
cause do not necessitate a hearing before the school's decisionmaking body.
See Mahavongsanan v. Hall, 529 F.2d 448 (CA5 1976); *fn4
Gaspar v. Bruton, 513 F.2d 843 (CA10 1975). *fn5
These prior decisions of state and federal courts, over a period of 60 years,
unanimously holding that formal hearings before decisionmaking bodies need
not be held in the case of academic dismissals, cannot be rejected lightly.
Cf. Snyder v. Massachusetts, 291 U.S. 97, 118-119, 131-132 (1934); Powell
v. Alabama, 287 U.S. 45, 69-71 (1932); Jackman v. Rosenbaum Co., 260 U.S.
22, 31 (1922).
|||Reason, furthermore, clearly supports the perception of these decisions.
A school is an academic institution, not a courtroom or administrative hearing
room. In Goss, this Court felt that suspensions of students for disciplinary
reasons have a sufficient resemblance to traditional judicial and administrative
factfinding to call for a "hearing" before the relevant school
authority. While recognizing that school authorities must be afforded the
necessary tools to maintain discipline, the Court concluded: S
|||"t would be a strange disciplinary system in an educational institution
if no communication was sought by the disciplinarian with the student in
an effort to inform him of his dereliction and to let him tell his side
of the story in order to make sure that an inJustice is not done.
|||"equiring effective notice and informal hearing permitting the student
to give his version of the events will provide a meaningful hedge against
erroneous action. At least the disciplinarian will be alerted to the existence
of disputes about facts and arguments about cause and effect." 419
U.S., at 580, 583-584.I
|||TEven in the context of a school disciplinary proceeding, however, the
Court stopped short of requiring a formal hearing since "further formalizing
the suspension process and escalating its formality and adversary nature
may not only make it too costly as a regular disciplinary tool but also
destroy its effectiveness as a part of the teaching process." Id.,
|||Academic evaluations of a student, in contrast to disciplinary determinations,
bear little resemblance to the judicial and administrative factfinding proceedings
to which we have traditionally attached a full-hearing requirement. In Goss,
the school's decision to suspend the students rested on factual Conclusions
that the individual students had participated in demonstrations that had
disrupted classes, attacked a police officer, or caused physical damage
to school property. The requirement of a hearing, where the student could
present his side of the factual issue, could under such circumstances "provide
a meaningful hedge against erroneous action." Ibid. The decision to
dismiss respondent, by comparison, rested on the academic judgment of school
officials that she did not have the necessary clinical ability to perform
adequately as a medical doctor and was making insufficient progress toward
that goal. Such a judgment is by its nature more subjective and evaluative
than the typical factual questions presented in the average disciplinary
decision. Like the decision of an individual professor as to the proper
grade for a student in his course, the determination whether to dismiss
a student for academic reasons requires an expert evaluation of cumulative
information and is not readily adapted to the procedural tools of judicial
or administrative decisionmaking.
|||Under such circumstances, we decline to ignore the historic judgment of
educators and thereby formalize the academic dismissal process by requiring
a hearing. The educational process is not by nature adversary; instead it
centers around a continuing relationship between faculty and students, "one
in which the teacher must occupy many roles -- educator, adviser, friend,
and, at times, parent-substitute." Goss v. Lopez, 419 U.S., at 594
(POWELL, J., Dissenting). This is especially true as one advances through
the varying regimes of the educational system, and the instruction becomes
both more individualized and more specialized. In Goss, this Court concluded
that the value of some form of hearing in a disciplinary context outweighs
any resulting harm to the academic environment. Influencing this Conclusion
was clearly the belief that disciplinary proceedings, in which the teacher
must decide whether to punish a student for disruptive or insubordinate
behavior, may automatically bring an adversary flavor to the normal student-teacher
relationship. The same Conclusion does not follow in the academic context.
We decline to further enlarge the judicial presence in the academic community
and thereby risk deterioration of many beneficial aspects of the faculty-student
relationship. We recognize, as did the Massachusetts Supreme Judicial Court
over 60 years ago, that a hearing may be "useless or harmful in finding
out the truth as to scholarship." Barnard v. Inhabitants of Shelburne,
216 Mass., at 23, 102 N.E., at 1097.
|||"Judicial interposition in the operation of the public school system
of the Nation raises problems requiring care and restraint.... By and large,
public education in our Nation is committed to the control of state and
local authorities." Epperson v. Arkansas, 393 U.S. 97, 104 (1968).
We see no reason to intrude on that historic control in this case. *fn6
|||In reversing the District Court on procedural due process grounds, the
Court of Appeals expressly failed to "reach the substantive due process
ground advanced by Horowitz." 538 F.2d, at 1321 n. 5. Respondent urges
that we remand the cause to the Court of Appeals for consideration of this
additional claim. In this regard, 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." Mahavongsanan
v. Hall, 529 F.2d, at 449. See Gaspar v. Bruton, 513 F.2d, at 850, and citations
therein. Even assuming that the courts can review under such a standard
an academic decision of a public educational institution, we agree with
the District Court that no showing of arbitrariness or capriciousness has
been made in this case. *fn7 Courts
are particularly ill-equipped to evaluate academic performance. The factors
discussed in Part II with respect to procedural due process speak a fortiori
here and warn against any such judicial intrusion into academic decisionmaking.
|||The judgment of the Court of Appeals is therefore
|||JUSTICE POWELL, Concurring.
|||I join the Court's opinion because I read it as upholding the District
Court's view that respondent was dismissed for academic deficiencies rather
than for unsatisfactory personal conduct, and that in these circumstances
she was accorded due process.
|||In the numerous meetings and Discussions respondent had with her teachers
and advisers, see opinion of MR. JUSTICE MARSHALL, post, at 98-99, culminating
in the special clinical examination administered by seven physicians, *fn1
ante, at 81, respondent was warned of her clinical deficiencies and given
every opportunity to demonstrate improvement or question the evaluations.
The primary focus of these Discussions and examinations was on respondent's
competence as a physician.
|||JUSTICE MARSHALL nevertheless states that respondent's dismissal was based
"largely" on "her conduct": S
|||"It may nevertheless be true, as the Court implies, ante, at 91 n.
6, that the school decided that respondent's inadequacies in such areas
as personal hygiene, peer and patient relations, and timeliness would impair
her ability to be 'a good medical doctor.' Whether these inadequacies can
be termed 'purely academic reasons,' as the Court calls them, ibid., is
ultimately an irrelevant question, and one placing an undue emphasis on
words rather than functional considerations. The relevant point is that
respondent was dismissed largely because of her conduct, just as the students
in Goss were suspended because of their conduct." Post, at 104 (emphasis
added; footnotes omitted).I icitly contrary to the District Court's undisturbed
findings of fact. In one sense, the term "conduct" could be used
to embrace a poor academic performance as well as unsatisfactory personal
conduct. But I do not understand MR. JUSTICE MARSHALL to use the term in
that undifferentiated sense. *fn2
His opinion likens the dismissal of respondent to the suspension of the
students in Goss v. Lopez, 419 U.S. 565 (1975), for personal misbehavior.
There is evidence that respondent's personal conduct may have been viewed
as eccentric, but -- quite unlike the suspensions in Goss -- respondent's
dismissal was not based on her personal behavior.
|||The findings of the District Court conclusively show that respondent was
dismissed for failure to meet the academic standards of the Medical School.
The court, after reviewing the evidence in some detail, concluded: S
|||"The evidence presented in this case totally failed to establish
that plaintiff was expelled for any reason other than the quality of her
work." App. 44. *fn3
|||It is well to bear in mind that respondent was attending a medical school
where competence in clinical courses is as much of a prerequisite to graduation
as satisfactory grades in other courses. Respondent was dismissed because
she was as deficient in her clinical work as she was proficient in the "book-learning"
portion of the curriculum. *fn4
Evaluation of her performance in the former area is no less an "academic"
judgment because it involves observation of her skills and techniques in
actual conditions of practice, rather than assigning a grade to her written
answers on an essay question. *fn5
|||Because it is clear from the findings of fact by the District Court that
respondent was dismissed solely on academic grounds, and because the standards
of procedural due process were abundantly met before dismissal occurred,
*fn6 I join the Court's opinion.
|||JUSTICE WHITE, Concurring in part and Concurring in the judgment.
|||I join Parts I, II-A, and III of the Court's opinion and concur in the
|||I agree with my Brother BLACKMUN that it is unnecessary to decide whether
respondent had a constitutionally protected property or liberty interest
or precisely what minimum procedures were required to divest her of that
interest if it is assumed she had one. Whatever that minimum is, the procedures
accorded her satisfied or exceeded that minimum.
|||The Court nevertheless assumes the existence of a protected interest,
proceeds to classify respondent's expulsion as an "academic dismissal,"
and concludes that no hearing of any kind or any opportunity to respond
is required in connection with such an action. Because I disagree with this
Conclusion, I feel constrained to say so and to concur only in the judgment.
|||As I see it, assuming a protected interest, respondent was at the minimum
entitled to be informed of the reasons for her dismissal and to an opportunity
personally to state her side of the story. Of course, she had all this,
and more. I also suspect that expelled graduate or college students normally
have the opportunity to talk with their expellers and that this sort of
minimum requirement will impose no burden that is not already being shouldered
and discharged by responsible institutions.
|||JUSTICE MARSHALL, Concurring in part and Dissenting in part.
|||I agree with the Court that, "ssuming the existence of a liberty
or property interest, respondent has been awarded at least as much due process
as the Fourteenth Amendment requires." Ante, at 84-85. I cannot join
the Court's opinion, however, because it contains dictum suggesting that
respondent was entitled to even less procedural protection than she received.
I also differ from the Court in its assumption that characterization of
the reasons for a dismissal as "academic" or "disciplinary"
is relevant to resolution of the question of what procedures are required
by the Due Process Clause. Finally, I disagree with the Court's decision
not to remand to the Court of Appeals for consideration of respondent's
substantive due process claim.
|||We held in Goss v. Lopez, 419 U.S. 565 (1975), that S
|||"due process requires, in connection with a suspension of 10 days
or less, that the student be given oral or written notice of the charges
against him and, if he denies them, an explanation of the evidence the authorities
have and an opportunity to present his side of the story." Id., at
|||There is no question that respondent received these protections, and more.
|||According to the stipulation of facts filed in the District Court, respondent
had a "Discussion" with the Dean of the Medical School in mid-1972,
at the close of her first year in school, during which she was notified
of her unsatisfactory performance. *fn2
The Dean testified that he explained the nature of her problems to respondent
twice at this meeting, so that she would fully understand them. *fn3
A letter from the Dean followed shortly thereafter, in which respondent
was advised that she was being placed on probation because of, inter alia,
"a major deficiency" in her "relationships with others,"
and her failure to "kee to established schedules" and "atten
carefully to personal appearance." *fn4
The Dean again met with respondent in October 1972 "to call attention
in a direct and supportive way to the fact that her performance was not
then strong." *fn5
|||In January 1973, there was still another meeting between respondent and
the Dean, who was accompanied by respondent's docent and the chairman of
the Council on Evaluation. Respondent was there notified of the Council's
recommendation that she not graduate and that she be dropped from school
unless there was "radical improvement" in her "clinical competence,
peer and patient relations, personal hygiene, and ability to accept criticism."
*fn6 A letter from the Dean again
followed the meeting; the letter summarized respondent's problem areas and
noted that they had been discussed with her "several times." *fn7
|||These meetings and letters plainly gave respondent all that Goss requires:
several notices and explanations, and at least three opportunities "to
present side of the story." 419 U.S., at 581. I do not read the Court's
opinion to disagree with this Conclusion. Hence I do not understand why
the Court indicates that even the "informal give-and-take" mandated
by Goss, id., at 584, need not have been provided here. See ante, at 85-86,
89-91. This case simply provides no legitimate opportunity to consider whether
"far less stringent procedural requirements," ante, at 86, than
those required in Goss are appropriate in other school contexts. While I
disagree with the Court's Conclusion that "far less" is adequate,
as discussed (infra), it is equally disturbing that the Court decides an
issue not presented by the case before us. As Mr. Justice Brandeis warned
over 40 years ago, the "'great gravity and delicacy'" of our task
in constitutional cases should cause us to "'shrink'" from "'anticipat
a question of constitutional law in advance of the necessity of deciding
it,'" and from "'formulat a rule of constitutional law broader
than is required by the precise facts to which it is to be applied.'"
Ashwander v. TVA, 297 U.S. 288, 345-347 (1936) (concurring opinion).
|||In view of the Court's dictum to the effect that even the minimum procedures
required in Goss need not have been provided to respondent, I feel compelled
to comment on the extent of procedural protection mandated here. I do so
within a framework largely ignored by the Court, a framework derived from
our traditional approach to these problems. According to our prior decisions,
as summarized in Mathews v. Eldridge, 424 U.S. 319 (1976), three factors
are of principal relevance in determining what process is due: S
|||"First, the private interest that will be affected by the official
action; second, the risk of an erroneous deprivation of such interest through
the procedures used, and the probable value, if any, of additional or substitute
procedural safeguards; and finally, the Government's interest, including
the function involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail." Id.,
|||As the Court recognizes, the "private interest" involved here
is a weighty one: "the deprivation to which respondent was subjected
-- dismissal from a graduate medical school -- was more severe than the
10-day suspension to which the high school students were subjected in Goss."
Ante, at 86 n. 3. One example of the loss suffered by respondent is contained
in the stipulation of facts: Respondent had a job offer from the psychiatry
department of another university to begin work in September 1973; the offer
was contingent on her receiving the M.D. degree. *fn8
In summary, as the Court of Appeals noted: S
|||"The unrefuted evidence here establishes that Horowitz has been stigmatized
by her dismissal in such a way that she will be unable to continue her medical
education, and her chances of returning to employment in a medically related
field are severely damaged." 538 F.2d 1317, 1321 (CA8 1976).I
|||As Judge Friendly has written in a related context, when the State seeks
"to deprive a person of a way of life to which he has devoted years
of preparation and on which he... ha come to rely," it should be required
first to provide a "high level of procedural protection." *fn9
|||Neither of the other two factors mentioned in Mathews justifies moving
from a high level to the lower level of protection involved in Goss. There
was at least some risk of error inherent in the evidence on which the Dean
relied in his meetings with and letters to respondent; faculty evaluations
of such matters as personal hygiene and patient and peer rapport are neither
as "sharply focused" nor as "easily documented" as was,
e.g., the disability determination involved in Mathews, (supra) , at 343.
See Goss v. Lopez, 419 U.S., at 580 (when decisionmaker "act on the
reports and advice of others... he risk of error is not at all trivial").
|||Nor can it be said that the university had any greater interest in summary
proceedings here than did the school in Goss. Certainly the allegedly disruptive
and disobedient students involved there, see id., at 569-571, posed more
of an immediate threat to orderly school administration than did respondent.
As we noted in Goss, moreover, "it disserves... the interest of the
State if [the student's] suspension is in fact unwarranted." Id., at
579. *fn11 Under these circumstances
- with respondent having much more at stake than did the students in Goss,
the administration at best having no more at stake, and the meetings between
respondent and the Dean leaving some possibility of erroneous dismissal
-- I believe that respondent was entitled to more procedural protection
than is provided by "informal give-and-take" before the school
could dismiss her.
|||The contours of the additional procedural protection to which respondent
was entitled need not be defined in terms of the traditional adversary system
so familiar to lawyers and judges. See Mathews v. Eldridge, 424 U.S., at
348. We have emphasized many times that "he very nature of due process
negates any concept of inflexible procedures universally applicable to every
imaginable situation." Cafeteria Workers v. McElroy, 367 U.S. 886,
895 (1961); see, e.g., ante, at 86; Goss v. Lopez, (supra) , at 578. In
other words, what process is due will vary "according to specific factual
contexts." Hannah v. Larche, 363 U.S. 420, 442 (1960); see, e.g., Mathews
v. Eldridge, (supra) , at 334; Morrissey v. Brewer, 408 U.S. 471, 481 (1972);
Bell v. Burson, 402 U.S. 535, 540 (1971). See also Anti-Fascist Comm. v.
McGrath, 341 U.S. 123, 162-163 (1951) (Frankfurter, J., Concurring).
|||In the instant factual context the "appeal" provided to respondent,
see ante, at 81, served the same purposes as, and in some respects may have
been better than, a formal hearing. In establishing the procedure under
which respondent was evaluated separately by seven physicians who had had
little or no previous contact with her, it appears that the Medical School
placed emphasis on obtaining "a fair and neutral and impartial assessment."
*fn12 In order to evaluate respondent,
each of the seven physicians spent approximately half a day observing her
as she performed various clinical duties and then submitted a report on
her performance to the Dean. *fn13
It is difficult to imagine a better procedure for determining whether the
school's allegations against respondent had any substance to them. *fn14
Cf. Mathews v. Eldridge, (supra) , at 337-338, 344 (use of independent physician
to examine disability applicant and report to decisionmaker). I therefore
believe that the appeal procedure utilized by respondent, together with
her earlier notices from and meetings with the Dean, provided respondent
with as much procedural protection as the Due Process Clause requires. *fn15
|||The analysis in Parts I and II of this opinion illustrates that resolution
of this case under our traditional approach does not turn on whether the
dismissal of respondent is characterized as one for "academic"
or "disciplinary" reasons. In my view, the effort to apply such
labels does little to advance the due process inquiry, as is indicated by
examination of the facts of this case.
|||The minutes of the meeting at which it was first decided that respondent
should not graduate contain the following: S
|||"This issue is not one of academic achievement, but of performance,
relationship to people and ability to communicate." App. 218 (emphasis
|||By the customary measures of academic progress, moreover, no deficiency
was apparent at the time that the authorities decided respondent could not
graduate; prior to this time, according to the stipulation of facts, respondent
had received "credit" and "satisfactory grades" in all
of her courses, including clinical courses. *fn16
|||It may nevertheless be true, as the Court implies, ante, at 91 n. 6, that
the school decided that respondent's inadequacies in such areas as personal
hygiene, peer and patient relations, and timeliness would impair her ability
to be "a good medical doctor." Whether these inadequacies can
be termed "purely academic reasons," as the Court calls them,
ibid., is ultimately an irrelevant question, and one placing an undue emphasis
on words rather than functional considerations. The relevant point is that
respondent was dismissed largely because of her conduct, *fn17
just as the students in Goss were suspended because of their conduct. *fn18
|||The Court makes much of decisions from state and lower federal courts
to support its point that "dismissals for academic... cause do not
necessitate a hearing." Ante, at 87. The decisions on which the Court
relies, however, plainly use the term "academic" in a much narrower
sense than does the Court, distinguishing "academic" dismissals
from ones based on "misconduct" and holding that, when a student
is dismissed for failing grades, a hearing would serve no purpose. *fn19
These cases may be viewed as consistent with our statement in Mathews v.
Eldridge that "the probable value... of additional... procedural safeguards"
is a factor relevant to the due process inquiry. 424 U.S., at 335, quoted
(supra) , at 100; see 424 U.S., at 343-347. But they provide little assistance
in resolving cases like the present one, where the dismissal is based not
on failing grades but on conduct-related considerations. *fn20
|||In such cases a talismanic reliance on labels should not be a substitute
for sensitive consideration of the procedures required by due process. *fn21
When the facts disputed are of a type susceptible of determination by third
parties, as the allegations about respondent plainly were, see ante, at
91 n. 6, there is no more reason to deny all procedural protection to one
who will suffer a serious loss than there was in Goss v. Lopez, and indeed
there may be good reason to provide even more protection, as discussed in
Part II, (supra) . A court's characterization of the reasons for a student's
dismissal adds nothing to the effort to find procedures that are fair to
the student and the school, and that promote the elusive goal of determining
the truth in a manner consistent with both individual dignity and society's
|||While I agree with the Court that respondent received adequate procedural
due process, I cannot join the Court's judgment because it is based on resolution
of an issue never reached by the Court of Appeals. That court, taking a
properly limited view of its role in constitutional cases, refused to offer
dictum on respondent's substantive due process claim when it decided the
case on procedural due process grounds. See 538 F.2d, at 1321 n. 5, quoted
ante, at 91. Petitioners therefore presented to us only questions relating
to the procedural issue. Pet. for Cert. 2. Our normal course in such a case
is to reverse on the questions decided below and presented in the petition,
and then to remand to the Court of Appeals for consideration of any remaining
|||Rather than taking this course, the Court here decides on its own that
the record will not support a substantive due process claim, thereby "agree"
with the District Court. Ante, at 92. I would allow the Court of Appeals
to provide the first level of appellate review on this question. Not only
would a remand give us the benefit of the lower court's thoughts, *fn22
it would also allow us to maintain consistency with our own Rule 23(1)(c),
which states that "nly the questions set forth in the petition or fairly
comprised therein will be considered by the court." By bypassing the
courts of appeals on questions of this nature, we do no service to those
courts that refuse to speculate in dictum on a wide range of issues and
instead follow the more prudential, preferred course of avoiding decision
-- particularly constitutional decision -- until "'absolutely necessary'"
to resolution of a case. Ashwander v. TVA, 297 U.S., at 347 (Brandeis, J.,
|||I would reverse the judgment of the Court of Appeals and remand for further
|||JUSTICE BLACKMUN, with whom MR. JUSTICE BRENNAN joins, Concurring in part
and Dissenting in part.
|||The Court's opinion, and that of MR. JUSTICE MARSHALL, together demonstrate
conclusively that, assuming the existence of a liberty or property interest,
respondent received all the procedural process that was due her under the
Fourteenth Amendment. That, for me, disposes of this case, and compels the
reversal of the judgment of the Court of Appeals.
|||I find it unnecessary, therefore, to indulge in the arguments and counterarguments
contained in the two opinions as to the extent or type of procedural protection
that the Fourteenth Amendment requires in the graduate-school-dismissal
situation. Similarly, I also find it unnecessary to choose between the arguments
as to whether respondent's dismissal was for academic or disciplinary reasons
(or, indeed, whether such a distinction is relevant). I do agree with MR.
JUSTICE MARSHALL, however, that we should leave to the District Court and
to the Court of Appeals in the first instance the resolution of respondent's
substantive due process claim and of any other claim presented to, but not
decided by, those courts.
|||Accordingly, I, too, would reverse the judgment of the Court of Appeals
and remand the case for further proceedings.
|||* Joel M. Gora filed a brief for the American Civil Liberties Union et
al. as amici curiae urging affirmance.
|||*fn1 Respondent concedes that
petitioners have not "invoke any regulations to bar" her from
seeking out employment in the medical field or from finishing her medical
education at a different institution. Brief for Respondent 21. Cf. Board
of Regents v. Roth, 408 U.S., at 573. Indeed, the Coordinating Committee
in accepting the recommendation of the Council that respondent be dismissed,
noted that "as with all students, should sufficient improvement take
place, she could be considered for readmission to the School of Medicine."
The Court of Appeals, however, relied on the testimony of a doctor employed
by the Kansas City Veterans' Administration to the effect that respondent's
dismissal would be "a significant black mark." On the Medical
School side, it was the doctor's view that respondent "would have great
difficulty to get into another medical school, if at all." As for employment,
if two people were applying for a position with the Veterans' Administration
with "otherwise ... equal qualifications, roughly, I would lean heavily
to the other person who was not dismissed from a graduate school."
538 F.2d 1317, 1320-1321, n. 3 (1976).
|||*fn2 The Court of Appeals held
without elaboration that the dismissal had been "effected without the
hearing required by the fourteenth amendment." 538 F.2d, at 1321. No
express indication was given as to what the minimum requirements of such
a hearing would be. One can assume, however, that the contours of the hearing
would be much the same as those set forth in Greenhill v. Bailey, 519 F.2d
5 (CA8 1975), which also involved an academic dismissal and upon which the
Court of Appeals principally relied. Greenhill held that the student must
be "accorded an opportunity to appear personally to contest [the allegations
of academic deficiency]. We stop short, however, of requiring full trial-type
procedures in such situations. A graduate or professional school is, after
all, the best Judge of its students' academic performance and their ability
to master the required curriculum. The presence of attorneys or the imposition
of rigid rules of cross-examination at a hearing for a student... would
serve no useful purpose, notwithstanding that the dismissal in question
may be of permanent duration. But an 'informal give-and-take' between the
student and the administrative body dismissing him... would not unduly burden
the educational process and would, at least, give the student 'the opportunity
to characterize his conduct and put it in what he deems the proper context.'"
Id., at 9 (footnote omitted), quoting Goss v. Lopez, 419 U.S., at 584. Respondent
urges us to go even further than the Court of Appeals and require "the
fundamental safeguards of representation by counsel, confrontation, and
cross-examination of witnesses." Brief for Respondent 36.
|||*fn3 We fully recognize that
the deprivation to which respondent was subjected -- dismissal from a graduate
medical school -- was more severe than the 10-day suspension to which the
high school students were subjected in Goss. And a relevant factor in determining
the nature of the requisite due process is "the private interest that
affected by the official action." Mathews v. Eldridge, 424 U.S. 319,
335 (1976). But the severity of the deprivation is only one of several factors
that must be weighed in deciding the exact due process owed. Ibid. We conclude
that considering all relevant factors, including the evaluative nature of
the inquiry and the significant and historically supported interest of the
school in preserving its present framework for academic evaluations, a hearing
is not required by the Due Process Clause of the Fourteenth Amendment.
|||*fn4 "The district court's
grant of relief is based on a confusion of the court's power to review disciplinary
actions by educational institutions on the one hand, and academic decisions
on the other hand. This Court has been in the vanguard of the legal development
of due process protections for students ever since Dixon v. Alabama State
Board of Education, 5 Cir. 1961, 294 F.2d 150, cert. denied 1961, 368 U.S.
930.... However, the due process requirements of notice and hearing developed
in the Dixon line of cases have been carefully limited to disciplinary decisions.
When we explained that 'the student at the tax supported institution cannot
be arbitrarily disciplined without the benefit of the ordinary, well recognized
principles of fair play', we went on to declare that 'e know of no case
which holds that colleges and universities are subject to the supervision
or review of the courts in the uniform application of their academic standards.
Indeed, Dixon infers to the contrary.' Wright v. Texas Southern University,
5 Cir. 1968, 392 F.2d 728, 729. Misconduct and failure to attain a standard
of scholarship cannot be equated. A hearing may be required to determine
charges of misconduct, but a hearing may be useless or harmful in finding
out the truth concerning scholarship. There is a clear dichotomy between
a student's due process rights in disciplinary dismissals and in academic
dismissals." 529 F.2d, at 449-450.
|||*fn5 In Greenhill v. Bailey,
(supra) , the Court of Appeals held that a hearing had been necessary where
a medical school not only dismissed a student for academic reasons but also
sent a letter to the Liaison Committee of the Association of the American
Medical Colleges suggesting that the student either lacked "intellectual
ability" or had insufficiently prepared his course work. The court
specifically noted that "there has long been a distinction between
cases concerning disciplinary dismissals, on the one hand, and academic
dismissals, on the other" and emphasized that it did not wish to "blur
that distinction." 519 F.2d, at 8. In the court's opinion, the publicizing
of an alleged deficiency in the student's intellectual ability removed the
case from the typical instance of academic dismissal and called for greater
procedural protections. Cf. Bishop v. Wood, 426 U.S. 341 (1976).
|||*fn6 Respondent contends in passing
that she was not dismissed because of "clinical incompetence,"
an academic inquiry, but for disciplinary reasons similar to those involved
in Goss. Thus, as in Goss, a hearing must be conducted. In this regard,
respondent notes that the school warned her that significant improvement
was needed not only in the area of clinical performance but also in her
personal hygiene and in keeping to her clinical schedules. The record, however,
leaves no doubt that respondent was dismissed for purely academic reasons,
a fact assumed without Discussion by the lower courts. Personal hygiene
and timeliness may be as important factors in a school's determination of
whether a student will make a good medical doctor as the student's ability
to take a case history or diagnose an illness. Questions of personal hygiene
and timeliness, of course, may seem more analogous to traditional factfinding
than other inquires that a school may make in academically evaluating a
student. But in so evaluating the student, the school considers and weighs
a variety of factors, not all of which, as noted earlier, are adaptable
to the factfinding hearing. And the critical faculty-student relationship
may still be injured if a hearing is required.
|||*fn7 Respondent alleges that
the school applied more stringent standards in evaluating her performance
than that of other students because of her sex, religion, and physical appearance.
The District Court, however, found: "There was no evidence that was
in any manner evaluated differently from other students because of her sex
or because of her religion. With regard to [respondent's] physical appearance,
this in and of itself did not cause to be evaluated any differently than
any of the other students." App. 45.
|||*fn8 Respondent also contends
that petitioners failed to follow their own rules respecting evaluation
of medical students and that this failure amounted to a constitutional violation
under Service v. Dulles, 354 U.S. 363 (1957). We disagree with both respondent's
factual and legal contentions. As for the facts, the record clearly shows
that the school followed its established rules, except where new rules had
to be designed in an effort to further protect respondent, as with the practical
"appeal" that petitioners allowed respondent to take. The District
Court specifically found that "the progress status of in the medical
school was evaluated in a manner similar to and consistent with the evaluation
of other similarly situated students, with the exception that [respondent's]
docent... went to even greater lengths to assist in an effort for her to
obtain her M.D. degree, than he did for any of his other students."
App. 45. As for the legal Conclusion that respondent draws, both Service
and Accardi v. Shaughnessy, 347 U.S. 260 (1954), upon which Service relied,
enunciate principles of federal administrative law rather than of constitutional
law binding upon the States.
|||1 As a safeguard against erroneous judgment, and at respondent's request,
App. 185, the Medical School submitted the question of respondent's clinical
competency to a panel of "seven experienced physicians." Panel
members were requested "to provide a careful, detailed, and thorough
assessment of [respondent's] abilities at this time." Ibid. The Dean's
letter to respondent of March 15, 1973, advised her quite specifically of
the "general topic in the curriculum about which we are asking [the
panel] to evaluate your performance...." Ibid. Each member of the examining
panel was requested to "evaluate the extent of [respondent's] mastery
of relevant concepts, knowledge, skills, and competence to function as a
physician." Id., at 209. The examinations by members of the panel were
conducted separately. Two of the doctors recommended that respondent be
graduated although one added that "she would not qualify to intern
at the hospital where he worked." Id., at 40. Each of the other five
doctors submitted negative recommendations, although they varied as to whether
respondent should be dropped from school immediately. Ibid.
|||2 Indeed, in view of MR. JUSTICE MARSHALL'S apparent Conclusion that respondent
was dismissed because of some objectively determinable conduct, it is difficult
to understand his Conclusion that the special examination administered by
the seven practicing physicians "may have been better than... a formal
hearing." Post, at 102. That examination did not purport to determine
whether, in the past, respondent had engaged in conduct that would warrant
dismissal. Respondent apparently was not called upon to argue that she had
not done certain things in the past. There were no facts found on that point.
Nor did the doctors who administered the examination address themselves
to respondent's conduct at the time, apart from her ability to perform the
clinical tasks physicians must master . MR. JUSTICE MARSHALL says that this
evaluation tested the truth of the assertions that respondent could not
function as a doctor. Post, at 102-103, n. 14. This is a tacit recognition
that the issue was an academic one, rather than one limited to whether respondent
simply engaged in improper conduct.
|||3 The District Court also found:
|||"Considering all of the evidence presented, the Court finds that
the grading and evaluating system of the medical school was applied fairly
and reasonably to plaintiff, but plaintiff did not satisfy the requirements
of the medical school to graduate from the medical school in June 1973."
|||4 Dr. William Sirridge was the faculty member assigned to respondent as
her "chief docent" (faculty adviser). A portion of his testimony
was summarized by the District Court as follows:
|||"He [Dr. Sirridge] emphasized that plaintiff's [respondent's] problem
was that she thought she could learn to be a medical doctor by reading books,
and he advised her the clinical skills were equally as important for obtaining
the M.D. degree. He further testified that plaintiff cannot perform many
of the necessary basic skills required of a practicing physician...."
Id., at 35.
|||5 MR. JUSTICE MARSHALL insists that calling this an academic judgment
is an exercise in futility. Post, at 104-105, n. 18. As the Court points
out, however, the distinction between dismissal for academic deficiency
and dismissal for misconduct may be decisive as to the process that is due.
Ante, at 89-90. A decision relating to the misconduct of a student requires
a factual determination as to whether the conduct took place or not. The
accuracy of that determination can be safeguarded by the sorts of procedural
protections traditionally imposed under the Due Process Clause. An academic
judgment also involves this type of objectively determinable fact -- e.g.,
whether the student gave certain answers on an examination. But the critical
decision requires a subjective, expert evaluation as to whether that performance
satisfies some predetermined standard of academic competence. That standard,
in turn, is set by a similarly expert judgment. These evaluations, which
go far beyond questions of mere "conduct," are not susceptible
of the same sorts of procedural safeguards that are appropriate to determining
facts relating to misconduct. Thus, the Conclusion that a particular dismissal
is academic -- that it entails these expert evaluations -- is likely to
have controlling significance in determining how much and what sort of process
|||6 University faculties must have the widest range of discretion in making
judgments as to the academic performance of students and their entitlement
to promotion or graduation. Contrary to the suggestion of MR. JUSTICE MARSHALL,
post, at 104-105, n. 18, the fact that a particular procedure is possible
or available does not mean that it is required under the Due Process Clause.
Goss v. Lopez, 419 U.S. 565 (1975), simply does not speak to that point.
|||1 It is necessary to recount the facts underlying this Conclusion in some
detail, because the Court's opinion does not provide the relevant facts
with regard to the notice and opportunity to reply given to respondent.
|||2 App. 15. It is likely that respondent was less formally notified of
these deficiencies several months earlier, in March 1972. See id., at 100-101
(testimony of respondent's docent).
|||3 Id., at 146.
|||4 Id., at 15-16.
|||5 Id., at 147.
|||6 Id., at 18.
|||7 Id., at 182-183.
|||8 Id., at 16.
|||*fn9 Some Kind of Hearing, 123
U. Pa. L. Rev. 1267, 1296-1297 (1975) (revocation of professional licenses).
|||*fn10 The inquiry about risk
of error cannot be separated from the first inquiry about the private interest
at stake. The more serious the consequences for the individual, the smaller
the risk of error that will be acceptable.
|||*fn11 The statements and letters
of the Medical School Dean reflect a genuine concern that respondent not
be wrongfully dismissed. See App. 147-150, 180-183, 185-187.
|||*fn12 Id., at 150 (testimony
of Dean); see id., at 185, 187, 208, 210 (letters to respondent and seven
|||*fn13 See id., at 190-207.
|||*fn14 Respondent appears to
argue that her sex and her religion were underlying reasons for her dismissal
and that a hearing would have helped to resolve the "factual dispute"
between her and the school on these issues. Brief for Respondent 30; see
id., at 51-52. See also ante, at 92 n. 7. But the only express grounds for
respondent's dismissal related to deficiencies in personal hygiene, patient
rapport, and the like, and, as a matter of procedural due process, respondent
was entitled to no more than a forum to contest the factual underpinnings
of these grounds. The appeal procedure here gave respondent such a forum
-- an opportunity to demonstrate that the school's charges were "unfair
or mistaken," Goss v. Lopez, 419 U.S. 565, 581 (1975).
|||*fn15 Like a hearing, the appeal
procedure and the meetings
|||"represent... a valued human interaction in which the affected person
experience at least the satisfaction of participating in the decision that
vitally concern her.... hese rights to interchange express the elementary
idea that to be a person, rather than a thing, is at least to be consulted
about what is done with one." L. Tribe, American Constitutional Law
§ 10-7, p. 503 (1978) (emphasis in original).
|||*fn16 App. 12. Respondent later
received "no credit" for her emergency-room rotation, the only
course in which her grade was less than satisfactory. Ibid. This grade was
not recorded, according to the District Court, until after the decision
had been made that respondent could not graduate. Id., at 31. When the Coordinating
Committee made this decision, moreover, it apparently had not seen any evaluation
of respondent's emergency-room performance. See id., at 229 (minutes of
Coordinating Committee meeting).
|||*fn17 Only one of the reasons
voiced by the school for deciding not to graduate respondent had any arguable
nonconduct aspects, and that reason, "clinical competence," was
plainly related to perceived deficiencies in respondent's personal hygiene
and relationships with colleagues and patients. See id., at 219. See also
id., at 181, 182-183, 210.
|||*fn18 The futility of trying
to draw a workable distinction between "academic" and "disciplinary"
dismissals is further illustrated by my Brother POWELL's Concurring opinion.
The opinion states that the Conclusion in the text (supra) , "is explicitly
contrary to the District Court's undisturbed findings of fact," ante,
at 94, but it cites no District Court finding indicating that respondent's
dismissal was based on other than conduct-related considerations. No such
|||The District Court's statement that respondent was dismissed because of
"'the quality of her work,'" quoted ante, at 95, like statements
to the effect that the dismissal was "solely on academic grounds,"
ante, at 96, is ultimately irrelevant to the due process inquiry. It provides
no information on the critical question whether "the facts disputed
are of a type susceptible of determination by third parties." Iinfra,
at 106. Nor does the District Court's finding that "'the grading and
evaluating system of the medical school was applied fairly,'" quoted
ante, at 95 n. 3, advance resolution of this case, especially in view of
the fact, noted (supra) , that respondent's grades in clinical courses,
as in all other courses, were satisfactory when the decision was made that
she could not graduate. This fact further indicates, contrary to MR. JUSTICE
POWELL's intimation, ante, at 95, that the school found the deficiencies
in respondent's clinical performance to be different from the deficiencies
that lead to unsatisfactory grades in more traditional scholastic subjects.
|||JUSTICE POWELL is correct, of course, in suggesting that the kind of conduct
here involved is different from that involved in Goss v. Lopez, (supra)
. Ante, at 94, and n. 2. The question facing the Medical School authorities
was not solely whether respondent had misbehaved in the past, but rather
whether her past, present, and likely future conduct indicated that she
would not be "a good medical doctor," ante, at 91 n. 6. The appeal
procedure of the school was well suited to aid in resolution of this question,
since it involved "observation of her skills and techniques in actual
conditions of practice," ante, at 95. It matters not at all whether
the result of such observation is labeled "an 'academic' judgment,"
ibid., so long as it is recognized that the school authorities, having an
efficient procedure available to determine whether their decision to dismiss
respondent was "unfair or mistaken," Goss v. Lopez, (supra) ,
at 581, were constitutionally required to give respondent a chance to invoke
the procedure, as they did, before depriving her of a substantial liberty
or property interest. See (supra) , at 100-102.
|||*fn19 See Mahavongsanan v.
Hall, 529 F.2d 448, 450 (CA5 1976); Gaspar v. Bruton, 513 F.2d 843, 849-851
(CA10 1975); Mustell v. Rose, 282 Ala. 358, 367, 211 So. 2d 489, 497-498,
cert. denied, 393 U.S. 936 (1968); Barnard v. Inhabitants of Shelburne,
216 Mass. 19, 19-20, 22-23, 102 N.E. 1095, 1096-1097 (1913).
|||*fn20 See Brookins v. Bonnell,
362 F. Supp. 379, 383 (ED Pa. 1973):
|||"This case is not the traditional disciplinary situation where a
student violates the law or a school regulation by actively engaging in
prohibited activities. Plaintiff has allegedly failed to act and comply
with school regulations for admission and class attendance by passively
ignoring these regulations. These alleged failures do not constitute misconduct
in the sense that plaintiff is subject to disciplinary procedures. They
do constitute misconduct in the sense that plaintiff was required to do
something. Plaintiff contends that he did comply with the requirements.
Like the traditional disciplinary case, the determination of whether plaintiff
did or did not comply with the school regulations is a question of fact.
Most importantly, in determining this factual question, reference is not
made to a standard of achievement in an esoteric academic field. Scholastic
standards are not involved, but rather disputed facts concerning whether
plaintiff did or did not comply with certain school regulations. These issues
adapt themselves readily to determination by a fair and impartial 'due process'
|||*fn21 The Court's reliance
on labels, moreover, may give those school administrators who are reluctant
to accord due process to their students an excuse for not doing so. See
generally Kirp, Proceduralism and Bureaucracy: Due Process in the School
Setting, 28 Stan. L. Rev. 841 (1976).
|||*fn22 It would be useful, for
example, to have more careful assessments of whether the school followed
its own rules in dismissing respondent and of what the legal consequences
should be if it did not. The Court states that it "disagree with both
respondent's factual and legal contentions." Ante, at 92 n. 8. It then
asserts that "the record clearly shows" compliance with the rules,
ibid., but it provides neither elaboration of this Conclusion nor Discussion
of the specific ways in which respondent contends that the rules were not
followed, Brief for Respondent 42-46, contentions accompanied by citations
to the same record that the Court finds so "clear." The statement
of the District Court quoted by the Court, ante, at 92 n. 8, is not inconsistent
on its face with respondent's claim that the rules were not followed, nor
is there anything about the context of the statement to indicate that it
was addressed to this claim, see App. 45.
|||Review by the Court of Appeals would clarify these factual issues, which
rarely warrant the expenditure of this Court's time. If the Court's view
of the record is correct, however, then I do not understand why the Court
goes on to comment on the legal consequences of a state of facts that the
Court has just said does not exist. Like other aspects of the Court's opinion,
discussed (supra) , the legal comments on this issue are nothing more than
confusing dictum. It is true, as the Court notes, ante, at 92 n. 8, that
the decision from this Court cited by respondent was not expressly grounded
in the Due Process Clause. Service v. Dulles, 354 U.S. 363 (1957). But that
fact, which amounts to the only legal analysis offered by the Court on this
question, hardly answers respondent's point that some compliance with previously
established rules -- particularly rules providing procedural safeguards
-- is constitutionally required before the State or one of its agencies
may deprive a citizen of a valuable liberty or property interest.
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