At an educational institution, college students can be dismissed based on their academic performance, including not maintaining a certain grade point average, failing to meet a program requirement (i.e., completing a clinical rotation), or failing a comprehensive examination to complete an undergraduate or graduate degree.[1]
While case law on this topic is generally consistent across the United States, this memorandum will focus on decisions from the U.S. Second Circuit Court of Appeals,[2] federal district courts in New York, Connecticut, and Vermont,[3] and New York State courts,[4] regulating academic performance dismissals at a college or university.
This memorandum provides an overview of the due process guaranteed to students during an academic performance dismissal and how courts review academic performance determinations.
Student Conduct Institute members can also access a detailed appendix summarizing major issues in academic misconduct cases and this case law on our online Casebook, available at: https://scidigital.suny.edu/
In New York (and many other states), courts have identified an “‘implied contract’ between a university and the student which requires the ‘academic institution [to] act in good faith in its dealings with students.”[5] In situations involving a claim of procedural due process, universities are required to engage in “careful and deliberate” review of academic performance decisions.[6]
Universities are required to provide the student with some form of notice and the opportunity to be heard.[7] But, unlike in conduct matters, a formal hearing is not necessary for academic performance dismissals because, as the U.S. Supreme Court has explained, “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.”[8] An “informal give-and-take” between the student and the academic governing body is all that is required to satisfy due process requirements.[9]
Keep in mind that your institution’s code of conduct or student handbook may provide due process protections beyond what courts require under the Constitution. For example, if your institution requires a hearing prior to an academic performance dismissal, that procedure must be followed.
Judicial review of academic performance dismissal decisions is limited to the question of “whether the challenged determination was arbitrary and capricious, irrational, made in bad faith or contrary to Constitution or statute.”[10] Courts are reluctant to intervene in purely academic determinations because doing so would undermine the integrity of the educational institution.[11] Historically, the courts have “declined, in the absence of bad faith, to compel a university to award a diploma” unless malice or irrational behavior is shown by the educational institution.[12]
Courts are also unlikely to find that an academic performance dismissal will rise to the level of behavior necessary to sustain a substantive due process claim, which would only apply “to a narrow range of extreme acts that can be said to be ‘so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.’”[13]
[1] See Clements v. Cnty. of Nassau, 835 F.2d 1000, 1001 (2d Cir. 1987); see also Ward v. N.Y. Univ, No. 99 CIV. 8733(RCC), 2000 WL 1448641, at *1 (S.D.N.Y. Sept. 28, 2000); Cottone v. Marcus, No. 93-CV-6439L, 1995 WL 819034, at *1 (W.D.N.Y Apr. 5, 1995).
[2] See Clements v. Cnty. of Nassau, 835 F.2d 1000, 1001 (2d Cir. 1987).
[3] See Garcia v. State Univ. of N.Y. Health Sci. Ctr. at Brooklyn, No. CV 97-4189(RR), 2000 WL 1469551, at *1 (Aug. 21, 2000); Ogindo v. DeFleur, No. 07-CV-1322, 2008 WL 5105153, at *1 (N.D.N.Y. Oct. 16, 2008); Warters v. Laura, No. 3:10-cv-850 (GLS/DEP), 2013 WL 371661, at *1 (N.D.N.Y. Jan 29, 2013); Ward v. N.Y. Univ, No. 99 CIV. 8733(RCC), 2000 WL 1448641, at *1 (S.D.N.Y. Sept. 28, 2000); Philippeaux v. Fashion Insti. of Tech., No. 93 CIV 4438 (SAS), 1996 WL 164462, at *1 (S.D.N.Y. Apr. 9, 1996); Cottone v. Marcus, No. 93-CV-6439L, 1995 WL 819034, at *1 (W.D.N.Y Apr. 5, 1995).
[4] See Zanelli v. Rich, 127 A.D.3d 774, 774 (N.Y. App. Div. 2d Dep’t 2015); Sofair v. State Univ. of N.Y. Upstate Med. Ctr. Coll. of Med., 54 A.D.2d 287, 288 (N.Y. App. Div. 4th Dep’t 1976); Benson v. Trs. of Columbia Univ. in the City of N.Y., 215 A.D.2d 255, 255 (N.Y. App. Div. 1st Dep’t 1995); Susan M. v. N.Y. L. Sch., 76 N.Y.2d 241, 243 (N.Y. Ct. App. 1990); Garcia v. Dominican Coll., 165 A.D.3d 1239, 1240 (N.Y. App. Div. 2d Dep’t 2018); Kharouba v. N.Y. Coll. of Osteopathic Med., 137 A.D.3d 1277, 1277 (N.Y. App. Div. 2d Dep’t 2016); Daniel v. Brooklyn L. Sch., 153 A.D.3d 708, 708 (N.Y. App. Div. 2d Dep’t 2017); Williams v. State Univ. of New York – Health Sci. Ctr. at Brooklyn, 251 A.D.2d 508, 508 (N.Y. App. Div. 2d Dep’t 1998); Esmail v. S.U.N.Y. Health Sci. Ctr. at Brooklyn, 220 A.D.2d 328, 328 (N.Y. App. Div. 1st Dep’t 1995).
[5] See Cottone v. Marcus, No. 93-CV-6439L, 1995 WL 819034, at *6 (W.D.N.Y Apr. 5, 1995). State precedent varies about whether the student-university relationship is contractual in nature and what provisions included in a code of conduct or handbook become binding promises enforceable through a contract action. Campuses should consult counsel to determine the scope of their contractual duties to students in academic performance dismissals and conduct issues.
[6] See id.
[7] See id.
[8] Bd. of Curators of Univ. of Missouri v. Horowitz, 435 U.S. 78, 90 (1978). See Zanelli v. Rich, 127 A.D.3d 774, 775 (N.Y. App. Div. 2d Dep’t 2015).
[9] See Philippeaux v. Fashion Insti. of Tech., No. 93 CIV 4438 (SAS), 1996 WL 164462, at *12 (S.D.N.Y. Apr. 9, 1996).
[10] See Williams v. State Univ. of New York – Health Sci. Ctr. at Brooklyn, 251 A.D.2d 508, 508 (N.Y. App. Div. 2d Dep’t 1998).
[11] See Daniel v. Brooklyn L. Sch., 153 A.D.3d 708, 708 (N.Y. App. Div. 2d Dep’t 2017).
[12] See Susan M. v. N.Y. L. Sch., 76 N.Y.2d 241, 245-46 (N.Y. Ct. App. 1990).
[13] See Ogindo v. DeFleur, No. 07-CV-1322, 2008 WL 5105153, at *5 (N.D.N.Y. Oct. 16, 2008); see also Warters v. Laura, No. 3:10-cv-850 (GLS/DEP), 2013 WL 371661, at *6 (N.D.N.Y. Jan 29, 2013); Cottone v. Marcus, No. 93-CV-6439L, 1995 WL 819034, at *9 (W.D.N.Y Apr. 5, 1995).