A school had to go to court after it changed its policy regarding whether students could retake an examination.
The College of the Mainland (COM) is a public community college located in Texas City, Texas. This suit was filed by seven COM students who enrolled in the school’s nursing program.
When the students enrolled, they were given a handbook that said they could not graduate before passing an exit examination relating to nursing readiness. The handbook also said students could retake the examination if they did not pass on the first try.
After the students enrolled, the school decided to implement a change in the way they would be required to take the test. The change was made based on a position statement issued by the state board of nursing, which recommended that “a high stakes test not be the only criteria for graduation.”
No More Retakes
In response to the nursing board’s recommendation, the school decided to stop administering the exit examination as a stand-alone test. It included the examination as part of a course, where it accounted for 40% of each student’s final grade. There was no opportunity to retake the examination.
The students claimed that the school never put the change in writing and in fact did not even inform them of it. They took the examination as part of the course, and they failed it. When they asked for permission to retake the examination, their request was denied. As a result, they were told that they could not graduate.
The students sought internal review by launching a formal grade appeal, but an appeal panel rejected their request to retake the examination. The panel said the school had the right to change its policy.
Suit Claims Due Process Violations
The students then sued COM and the director of its nursing school, claiming procedural and substantive due process violations. A dismissal motion was referred to a magistrate judge, who recommended that the due process claims against COM and the director in her individual capacity be allowed to proceed. The district court then considered whether to accept the magistrate judge’s recommendation.
As to the students’ procedural due process claim, the court said “it is not clear that students have any liberty or property interests in academic programs that would merit procedural protections under the Fourteenth Amendment.” In addition, it said that any procedural requirements that might attach to a school’s academic decisions are much less stringent than requirements that apply when a student challenges a disciplinary decision.
When it comes to academic decisions, procedural due process requires notice but not a hearing, the court further explained.
Decision Was Academic, Not Disciplinary
In this case, the parties agreed that the school’s challenged actions were academic in nature. In addition, the students were given an opportunity to appeal the denial of their request to retake the examination. The panel review they were afforded went “well beyond what courts have found sufficient to satisfy procedural due process concerns in similar circumstances,” the court said. As a result, the students did not state a procedural due process claim that could survive a dismissal motion.
The students also alleged that the decision to disallow retakes of the examination violated their substantive due process rights. With respect to this claim, the students ran into a problem similar to the one that doomed their procedural due process claim: namely, it is far from clear that students have a substantive due process right to be free from arbitrary grading.
The U.S. Supreme Court has never expressly recognized that such a right exists, the court noted. The court also predicted that if confronted with the question, the Supreme Court would find that no such right exists.
Grading Change Was Exercise of Judgment
In any case, the students could not prevail on their substantive due process claim because the school showed the change was a judgment call. The school’s judgment was sound. Its decision to make the examination part of a particular course and not permit retakes promoted important interests, including finality, efficiency and fairness.
The change concerning the examination was made with the goal of reducing the stress associated with “all or nothing” finals, the court noted.
The school’s change to its examination – though made after the students had enrolled – was rationally related to the college’s mission of educating nurses.
The court concluded that the students did not state viable claims for violations of their procedural or substantive due process rights. As a result, the court granted the defense motion to dismiss.
Burnett v. College of the Mainland, No. 3:12-CV-00310, 2014 WL 129668 (S.D. Tex. 1/13/14).
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