Michael Porter, Esq., is a partner with Miller Nash Graham & Dunn LLP, with offices in Oregon and Washington. You may contact him at Mike.Porter@MillerNash.com.

Students invest increasingly more money and time to earn a college degree. Meanwhile, colleges vigorously market the long-term value of a two-year, four-year or graduate degree by pointing out postdegree income differentials.

Education costs create high stakes for academic progress

So when a student has spent three, five or even seven years in higher education, has amassed six figures of debt, and envisions enjoying the postgraduate life as advertised but is dismissed for academic reasons, the student often feels as though the rug has been pulled out from under him by a secret faction of faculty.

To attempt to protect his investment, the student will likely lawyer up. Students are likely to demand damages in the form of not only tuition and fees (maybe $100,000 or more), but also future lost wages of another few hundred thousand dollars, and in some cases legal fees.

If faculty members determine a student doesn’t show enough intellectual or practice capability to earn a degree, they typically determine she shouldn’t receive that degree. But resting comfortably in the belief that a jury will defer to faculty judgment can prove dangerous for colleges.

Increasingly, lawyers who specialize in individual rights are becoming savvier about how to attack academic decisions on behalf of students who feel wrongfully dismissed.

Courts will defer to academic judgment — to a point

In many cases, students have challenged academic dismissals in which the courts have recognized that a judge or jury shouldn’t substitute its judgment for that of the faculty.

For example, in a Washington Court of Appeals case, the court stated, “The decision not to award a degree is one uniquely within the expertise of the faculty members most familiar with the student’s abilities. Courts should not interfere unless the action is arbitrary and capricious or taken in bad faith” (Enns v. Bd. of Regents of Univ. of Wash., 650 P.2d 1113, 1116 (Wash Ct App 1982)). This type of deference is bound up in concepts of academic freedom.

Other courts have taken pains to point out that academic freedom doesn’t preclude a court “from vindicating the contractual rights of a plaintiff.” In one case, a court allowed a student-plaintiff to proceed past early dismissal when the plaintiff alleged, for example, that a faculty member had incorrectly relied on a “C” grade in a course, even though the student had achieved a “B.” The student also asserted that faculty members relied on an evaluation of the student stating his performance was “substandard,” even though the plaintiff had received an “A” (Paulin v. George Wash. Univ. Sch. of Med. & Health Scis., 878 F. Supp. 2d 241 (DDC 2012)).

In other words, if a student is dismissed and can point to mistakes that led to a dismissal decision, he can attack the decision and deference to faculty will dissipate.

Because academic dismissal cases aren’t particularly common (although becoming more so), judges may be wary of dismissing claims based solely on the grounds of academic deference. This is particularly true in cases in which processes or standards aren’t clearly written or lack the appearance of proper application.

Dismissal of cases is also difficult if faculty or administrators have engaged in wide-ranging email communication about the strengths and weaknesses of a student who wasn’t given the chance to see the email chain or respond.

If a case isn’t dismissed, jurors unfamiliar with higher education may be asked to evaluate whether an academic dismissal was legal.

What would a jury think?

If a case reaches a jury, the jury will care about whether the student was treated fairly. The demeanor of key faculty witnesses, the accuracy of information on which faculty relied, and the clarity of and adherence to procedures will matter to a jury.

To increase the likelihood of successful defense of a claim challenging an academic dismissal, colleges should take the following steps:

  • Examine catalogs and recruitment brochures for language that overstates what the college can deliver. Statements such as “The faculty of this program will ensure that every student is supported every step of the way to achievement of a degree” may not completely ruin an academic-deference defense because of other statements (and common sense) showing that a student isn’t guaranteed a degree, but a good advocate can take such a statement and try to get a jury to think that faculty members should have done more to help a student achieve.
  • Establish clear academic standards. And ensure consistency across all publications.
  • Develop clearly worded academic dismissal policies. And apply them consistently.
  • Train faculty and administrators in proper email communication. Stress the importance of using extreme caution and care.
  • Show compassion, not frustration. Jurors understand dismissal has very high stakes for a student, so they’re likely to understand a student’s strong reactions. But jurors are less likely to empathize with faculty or administrators who feel personally offended by a student’s approach to contesting an academic decision.

In today’s litigious society, colleges must consider how their actions will be viewed outside the academic environment.