Respondent was enrolled in a year program of study at the
University of Michigan known as "Inteflex." An undergraduate degree
and a medical degree are awarded upon successful completion of the
program. To qualify for the final two years of the program, a
student must pass an examination known as "NBME Part I." Respondent
was dismissed from the University when he failed this examination
with the lowest score recorded in the history of the Inteflex
program. After unsuccessfully seeking, from University authorities,
readmission to the program and an opportunity to retake the
examination, respondent brought suit in Federal District Court,
alleging a right to retake the examination on the ground,
inter
alia, that he had a property interest in the Inteflex program
and that his dismissal was arbitrary and capricious in violation of
his "substantive due process rights" guaranteed by the Fourteenth
Amendment. While determining that respondent had a constitutionally
protected property interest in continued enrollment in the Inteflex
program, the District Court found no violation of his due process
rights. The Court of Appeals reversed.
Held: Even if respondent's assumed property interest
gave rise to a substantive right under the Due Process Clause to
continue enrollment free from arbitrary state action, the facts of
record disclose no such action. The record unmistakably
demonstrates that the decision to dismiss respondent was made
conscientiously and with careful deliberation, based on an
evaluation of his entire academic career at the University,
including his singularly low score on the NBME Part I examination.
The narrow avenue for judicial review of the substance of academic
decisions precludes any conclusion that such decision was such a
substantial departure from accepted academic norms as to
demonstrate that the faculty did not exercise professional
judgment. Pp.
474 U. S.
222-228.
742 F.2d 913, reversed and remanded.
STEVENS, J., delivered the opinion for a unanimous Court.
POWELL, J., filed a concurring opinion,
post, p.
474 U. S.
228.
Page 474 U. S. 215
JUSTICE STEVENS delivered the opinion of the Court.
Respondent Scott Ewing was dismissed from the University of
Michigan after failing an important written examination. The
question presented is whether the University's action deprived
Ewing of property without due process of law because its refusal to
allow him to retake the examination was an arbitrary departure from
the University's past practice. The Court of Appeals held that his
constitutional rights were violated. We disagree.
I
In the fall of 1975, Ewing enrolled in a special 6-year program
of study, known as "Inteflex," offered jointly by the undergraduate
college and the Medical School. [
Footnote 1] An undergraduate degree and a medical degree
are awarded upon successful completion of the program. In order to
qualify for the final two years of the Inteflex program, which
consist of clinical training at hospitals affiliated with the
University, the student must successfully complete four years of
study, including both premedical courses and courses in the basic
medical sciences. The student must also pass the "NBME
Page 474 U. S. 216
Part I" -- a 2-day written test administered by the National
Board of Medical Examiners.
In the spring of 1981, after overcoming certain academic and
personal difficulties, Ewing successfully completed the courses
prescribed for the first four years of the Inteflex program and
thereby qualified to take the NBME Part I. Ewing failed five of the
seven subjects on that examination, receiving a total score of 235
when the passing score was 345. (A score of 380 is required for
state licensure, and the national mean is 500.) Ewing received the
lowest score recorded by an Inteflex student in the brief history
of that program.
On July 24, 1981, the Promotion and Review Board individually
reviewed the status of several students in the Inteflex program.
After considering Ewing's record in some detail, the nine members
of the Board in attendance voted unanimously to drop him from
registration in the program.
In response to a written request from Ewing, the Board
reconvened a week later to reconsider its decision. Ewing appeared
personally and explained why he believed that his score on the test
did not fairly reflect his academic progress or potential.
[
Footnote 2] After
reconsidering the matter, the nine voting members present
unanimously reaffirmed the prior action to drop Ewing from
registration in the program.
In August, Ewing appealed the Board's decision to the Executive
Committee of the Medical School. After giving Ewing an opportunity
to be heard in person, the Executive Committee unanimously approved
a motion to deny his appeal for a leave of absence status that
would enable him to retake Part I of the NBME examination. In the
following
Page 474 U. S. 217
year, Ewing reappeared before the Executive Committee on two
separate occasions, each time unsuccessfully seeking readmission to
the Medical School. On August 19, 1982, he commenced this
litigation in the United States District Court for the Eastern
District of Michigan.
II
Ewing's complaint against the Regents of the University of
Michigan asserted a right to retake the NBME Part I test on three
separate theories, two predicated on state law and one based on
federal law. [
Footnote 3] As a
matter of state law, he alleged that the University's action
constituted a breach of contract, and was barred by the doctrine of
promissory estoppel. As a matter of federal law, Ewing alleged that
he had a property interest in his continued enrollment in the
Inteflex program, and that his dismissal was arbitrary and
capricious, violating his "substantive due process rights"
guaranteed by the Fourteenth Amendment and entitling him to relief
under 42 U.S.C. § 1983.
The District Court held a 4-day bench trial at which it took
evidence on the University's claim that Ewing's dismissal was
justified as well as on Ewing's allegation that other University of
Michigan medical students who had failed the NBME Part I had
routinely been given a second opportunity to take the test. The
District Court described Ewing's unfortunate academic history in
some detail. Its findings, set forth in the margin, [
Footnote 4] reveal that Ewing "encountered
immediate
Page 474 U. S. 218
difficulty in handling the work,"
Ewing v. Board of
Regents, 559 F.
Supp. 791, 793 (1983), and that his difficulties -- in the form
of marginally passing grades and a number of
Page 474 U. S. 219
incompletes and makeup examinations, many experienced while
Ewing was on a reduced course load -- persisted throughout the
6-year period in which he was enrolled in the Inteflex program.
Ewing discounted the importance of his own academic record by
offering evidence that other students with even more academic
deficiencies were uniformly allowed to retake the NBME Part I.
See App. 107-111. The statistical evidence indicated that,
of the 32 standard students in the Medical School who failed Part I
of the NBME since its inception, all 32 were permitted to retake
the test, 10 were allowed to take the test a third time, and 1 a
fourth time. Seven students in the Inteflex program were allowed to
retake the test, and one student was allowed to retake it twice.
Ewing is the only student who, having failed the test, was not
permitted to retake it. Dr. Robert Reed, a former Director of the
Inteflex program and a member of the Promotion and Review Board,
stated that students were "routinely" given a second chance. 559 F.
Supp. at 794.
Accord, App. 8, 30, 39-40, 68, 73, 163.
Ewing argued that a promotional pamphlet released by the Medical
School approximately a week before the examination had codified
this practice. The pamphlet, entitled "On Becoming a Doctor,"
stated:
"According to Dr. Gibson, everything possible is done to keep
qualified medical students in the Medical School. This even extends
to taking and passing National Board Exams. Should a student fail
either part of the National Boards, an opportunity is provided to
make up the failure in a second exam."
Id. at 113.
The District Court concluded that the evidence did not support
either Ewing's contract claim or his promissory estoppel
Page 474 U. S. 220
claim under governing Michigan law. There was
"no sufficient evidence to conclude that the defendants bound
themselves either expressly or by a course of conduct to give Ewing
a second chance to take Part I of the NBME examination."
559 F.
Supp. at 800. With reference to the pamphlet "On Becoming A
Doctor," the District Court held that,
"even if [Ewing] had learned of the pamphlet's contents before
he took the examination, and I find that he did not, I would not
conclude that this amounted either to an unqualified promise to him
or gave him a contract right to retake the examination."
Ibid. .
With regard to Ewing's federal claim, the District Court
determined that Ewing had a constitutionally protected property
interest in his continued enrollment in the Inteflex program, and
that a state university's academic decisions concerning the
qualifications of a medical student are "subject to substantive due
process review" in federal court.
Id. at 798. The District
Court, however, found no violation of Ewing's due process rights.
The trial record, it emphasized, was devoid of any indication that
the University's decision was "based on bad faith, ill-will or
other impermissible ulterior motives"; to the contrary, the
"evidence demonstrate[d] that the decision to dismiss plaintiff
was reached in a fair and impartial manner, and only after careful
and deliberate consideration."
Id. at 799. To "leave no conjecture" as to his
decision, the District Judge expressly found that
"the evidence demonstrate[d] no arbitrary or capricious action,
since [the Regents] had good reason to dismiss Ewing from the
program."
Id. at 800.
Without reaching the state law breach of contract and promissory
estoppel claims, [
Footnote 5]
the Court of Appeals reversed the dismissal of Ewing's federal
constitutional claim. The
Page 474 U. S. 221
Court of Appeals agreed with the District Court that Ewing's
implied contract right to continued enrollment free from arbitrary
interference qualified as a property interest protected by the Due
Process Clause, but it concluded that the University had
arbitrarily deprived him of that property in violation of the
Fourteenth Amendment because (1) "Ewing was a
qualified'
student, as the University defined that term, at the time he sat
for NBME Part I"; (2) "it was the consistent practice of the
University of Michigan to allow a qualified medical student who
initially failed the NBME Part I an opportunity for a retest"; and
(3) "Ewing was the only University of Michigan medical student who
initially failed the NBME Part I between 1975 and 1982 and was not
allowed an opportunity for a retest." Ewing v. Board of
Regents, 742 F.2d 913, 916 (CA6 1984). The Court of Appeals
therefore directed the University to allow Ewing to retake the NBME
Part I, and if he should pass, to reinstate him in the Inteflex
program.
We granted the University's petition for certiorari to consider
whether the Court of Appeals had misapplied the doctrine of
"substantive due process." [
Footnote 6] 470 U.S. 1083 (1985). We now reverse.
Page 474 U. S. 222
III
In
Board of Curators, Univ. of Mo. v. Horowitz,
435 U. S. 78,
435 U. S. 91-92
(1978), we assumed, without deciding, that federal courts can
review an academic decision of a public educational institution
under a substantive due process standard. In this case, Ewing
contends that such review is appropriate because he had a
constitutionally protected property interest in his continued
enrollment in the Inteflex program. [
Footnote 7] But remembering Justice Brandeis' admonition
not to "
formulate 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,
297 U. S. 347
(1936) (concurring opinion), we again conclude, as we did in
Horowitz, that the precise facts disclosed by the record
afford the most appropriate basis for
Page 474 U. S. 223
decision. We therefore accept the University's invitation to
"assume the existence of a constitutionally protectible property
right in [Ewing's] continued enrollment," [
Footnote 8] and hold that, even if Ewing's assumed
property interest gave rise to a substantive right under the Due
Process Clause to continued enrollment free from arbitrary state
action, the facts of record disclose no such action.
As a preliminary matter, it must be noted that any substantive
constitutional protection against arbitrary dismissal would not
necessarily give Ewing a right to retake the NBME Part I. The
constitutionally protected interest alleged by Ewing in his
complaint, App. 15, and found by the courts below, derives from
Ewing's implied contract right to continued enrollment free from
arbitrary dismissal. The District Court did not find that Ewing had
any separate right to retake the exam and, what is more,
explicitly
"reject[ed] the contract and promissory estoppel claims, finding
no sufficient evidence to conclude that the defendants bound
themselves either expressly or by a course of conduct to give Ewing
a second chance to take Part I of the NBME examination."
559 F.
Supp. at 800. The Court of Appeals did not overturn the
District Court's determination that Ewing lacked a tenable contract
or estoppel claim under Michigan law, [
Footnote 9]
see supra at
474 U. S. 220,
and n. 5, and we accept its reasonable
Page 474 U. S. 224
rendering of state law, particularly when no party has
challenged it. [
Footnote
10]
The University's refusal to allow Ewing to retake the NBME Part
I is thus not actionable in itself. It is, however, an important
element of Ewing's claim that his dismissal was the product of
arbitrary state action, for under proper analysis, the refusal may
constitute evidence of arbitrariness even
Page 474 U. S. 225
if it is not the actual legal wrong alleged. The question, then,
is whether the record compels the conclusion that the University
acted arbitrarily in dropping Ewing from the Inteflex program
without permitting a reexamination.
It is important to remember that this is not a case in which the
procedures used by the University were unfair in any respect; quite
the contrary is true. Nor can the Regents be accused of concealing
nonacademic or constitutionally impermissible reasons for expelling
Ewing; the District Court found that the Regents acted in good
faith.
Ewing's claim, therefore, must be that the University misjudged
his fitness to remain a student in the Inteflex program. The record
unmistakably demonstrates, however, that the faculty's decision was
made conscientiously and with careful deliberation, based on an
evaluation of the entirety of Ewing's academic career. When judges
are asked to review the substance of a genuinely academic decision,
such as this one, they should show great respect for the faculty's
professional judgment. [
Footnote
11] Plainly, they may not override it unless it is such a
substantial departure from accepted academic norms as to
demonstrate that the person or committee responsible did not
actually exercise professional judgment.
Cf. Youngberg v.
Romeo, 457 U. S. 307,
457 U. S. 323
(1982).
Considerations of profound importance counsel restrained
judicial review of the substance of academic decisions. As JUSTICE
WHITE has explained:
"Although the Court regularly proceeds on the assumption that
the Due Process Clause has more than a procedural dimension, we
must always bear in mind that the substantive content of the Clause
is suggested neither by its language nor by preconstitutional
history;
Page 474 U. S. 226
that content is nothing more than the accumulated product of
judicial interpretation of the Fifth and Fourteenth Amendments.
This is . . . only to underline Mr. Justice Black's constant
reminder to his colleagues that the Court has no license to
invalidate legislation which it thinks merely arbitrary or
unreasonable.
Moore v. East Cleveland, 431 U. S.
494,
431 U. S. 543-544 (1977)
(WHITE, J., dissenting)."
See id. at
431 U. S. 502
(opinion of POWELL, J.). Added to our concern for lack of standards
is a reluctance to trench on the prerogatives of state and local
educational institutions and our responsibility to safeguard their
academic freedom, "a special concern of the First Amendment."
Keyishian v. Board of Regents, 385 U.
S. 589,
385 U. S. 603
(1967). [
Footnote 12] If a
"federal court is not the appropriate forum in which to review the
multitude of personnel decisions that are made daily by public
agencies,"
Bishop v. Wood, 426 U.
S. 341,
426 U. S. 349
(1976), far less is it suited to evaluate the substance of the
multitude of academic decisions that are made daily by faculty
members of public educational institutions -- decisions that
require
"an expert evaluation of cumulative information and [are] not
readily adapted to the procedural tools of judicial or
administrative decisionmaking."
Board of Curators, Univ. of Mo. v. Horowitz, 435 U.S.
at
435 U. S.
89-90.
Page 474 U. S. 227
This narrow avenue for judicial review precludes any conclusion
that the decision to dismiss Ewing from the Inteflex program was
such a substantial departure from accepted academic norms as to
demonstrate that the faculty did not exercise professional
judgment. Certainly his expulsion cannot be considered aberrant
when viewed in isolation. The District Court found as a fact that
the Regents "had good reason to dismiss Ewing from the program."
559 F.
Supp. at 800. Before failing the NBME Part I, Ewing accumulated
an unenviable academic record characterized by low grades, seven
incompletes, and several terms during which he was on an irregular
or reduced course load. Ewing's failure of his medical boards, in
the words of one of his professors, "merely culminate[d] a series
of deficiencies. . . . In many ways, it's the straw that broke the
camel's back." App. 79.
Accord, id. at 7, 54-55, 72-73.
[
Footnote 13] Moreover, the
fact that Ewing was "qualified" in the sense that he was eligible
to take the examination the first time does not weaken this
conclusion, for after Ewing took the NBME Part I, it was entirely
reasonable or the faculty to reexamine his entire record in the
light of the unfortunate results of that examination. Admittedly,
it may well have been unwise to deny Ewing a second chance.
Permission to retake the test might have saved the University the
expense of this litigation and conceivably might have demonstrated
that the members of the Promotion and Review Board misjudged
Ewing's fitness for the medical profession. But it nevertheless
remains true that his dismissal from the Inteflex program rested on
an academic judgment that is not beyond
Page 474 U. S. 228
the pale of reasoned academic decisionmaking when viewed against
the background of his entire career at the University of Michigan,
including his singularly low score on the NBME Part I examination.
[
Footnote 14]
The judgment of the Court of Appeals is reversed, and the case
is remanded for proceedings consistent with this opinion.
It is so ordered.
[
Footnote 1]
The Inteflex program has since been lengthened to seven
years.
[
Footnote 2]
At this and later meetings, Ewing excused his NBME Part I
failure because his mother had suffered a heart attack 18 months
before the examination; his girlfriend broke up with him about six
months before the examination; his work on an essay for a contest
had taken too much time; his makeup examination in pharmacology was
administered just before the NBME Part I; and his inadequate
preparation caused him to panic during the examination.
[
Footnote 3]
A fourth count of Ewing's complaint advanced a claim for damages
under 42 U.S.C. § 1983. The District Court held that the Board of
Regents is a state instrumentality immunized from liability for
damages under the Eleventh Amendment, and dismissed this count of
the complaint.
Ewing v. Board of Regents, 552 F.
Supp. 881 (ED Mich.1982).
[
Footnote 4]
In the fall of 1975, when Ewing enrolled in the program, he
encountered immediate difficulty in handling the work, and he did
not take the final examination in Biology. It was not until the
following semester that he completed this course and received a C.
His performance in his other first semester courses was as follows:
a C in Chemistry 120, a C in his writing course, and an incomplete
in the Freshman Seminar. In the next semester, he took Chemistry
220, a Freshman Seminar, and Psychology 504. He received a B in the
Freshman Seminar, a C in Chemistry 220, but he withdrew from
Psychology 504. He was advised at that time that he could not take
the Patient Care Course, usually given during the fall of an
Inteflex student's second year, and he was placed on an irregular
program. Because of these difficulties, at the July 14, 1976,
meeting of the Promotion and Review Board, he requested a leave of
absence, and when this was approved, he left the program.
"During the summer of 1976, while on leave, he took two Physics
courses at Point Loma College in California. He reentered the
Inteflex program at the University of Michigan in the winter, 1977,
term. In that term, he repeated Chemistry 220, in which he received
an A-. In the spring of 1977, he passed the Introduction to the
Patient Care course."
"In the 1977-78 year, he completed the regular Year II program.
But then he encountered new difficulty. In the fall of 1978, he
received an incomplete in Clinical Studies 400, which was converted
to a Pass; a B in Microbiology 420; and an incomplete in Gross
Anatomy 507. The Gross Anatomy incomplete was converted to a C- by
a make-up examination. During the winter of 1979, he received a C-
in Genetics 505, a C in Microbiology 520, an E in Microanatomy and
General Pathology 506, a B in Creative Writing, and a Pass in
Clinical Studies 410. He appealed the Microanatomy and General
Pathology grade, requesting a change from an E to a D, and a
make-up exam to receive a Pass. His appeal was denied by the Grade
Appeal Committee, and he was again placed on an irregular program;
he took only the Clinical Studies 420 course in the spring, 1979,
semester."
"In July, 1979, Ewing submitted a request to the Promotion and
Review Board for an irregular program consisting of a course in
Pharmacology in the fall and winter, 1979-80, and a course in Human
Illness and Neuroscience in 1980-81, thus splitting the fourth year
into two years. The Board denied this request and directed him to
take the fourth year curriculum in one academic year. He undertook
to do so. He removed his deficiency in Microanatomy and General
Pathology 506 by repeating the course during the winter 1980
semester, and received a C+. In the spring term of 1980, he passed
Developmental Anatomy with a B- grade, and he received a C grade in
Neuroscience I 509 after a reexamination. In the fall of 1980, he
received a passing grade in Neuroscience 609 and Pharmacology 626,
and in the winter term of 1981, he received a passing grade in
Clinical Studies 510 and a deficiency in Pharmacology 627. He was
given a makeup examination in this course, and he received a 67.7
grade."
"He then took Part I of the NBME. . . ."
Ewing v. Board of Regents, 559 F. Supp. at 793-794.
[
Footnote 5]
In a footnote, the Court of Appeals stated:
"Because we believe this case can be disposed of on the Section
1983 claim, this Court does not expressly reach the breach of
contract or promissory estoppel claims."
Ewing v. Board of Regents, 742 F.2d 913, 914, n. 2 (CA6
1984).
[
Footnote 6]
The University's petition for certiorari also presented the
question whether the Eleventh Amendment constituted a complete bar
to the action because it was brought against the "Board of Regents
of the University of Michigan," App. 13, a body corporate.
Cf.
Florida Dept. of Health v. Florida Nursing Home Assn.,
450 U. S. 147
(1981) (per curiam);
Alabama v. Pugh, 438 U.
S. 781 (1978) (per curiam). After the petition was
granted, however, respondent Ewing filed a motion to amend the
complaint by joining the individual members of the Board of Regents
as named defendants in their official capacities. The University
did not oppose that motion. Tr. of Oral Arg. 12-13.
Granting the motion merely conforms the pleadings to the "course
of proceedings" in the District Court.
Cf. Kentucky v.
Graham, 473 U. S. 159,
473 U. S. 167,
n. 14 (1985);
Brandon v. Holt, 469 U.
S. 464,
469 U. S. 469
(1985). The record reveals that the Regents frequently referred to
themselves in the plural, as "defendants," indicating that they
understood the suit to be against them individually, in their
official capacities, rather than against the Board as a corporate
entity. App. 11. Likewise, the District Court held that "defendants
did not act in violation of Ewing's due process rights," 559 F.
Supp. at 799, and accordingly found "in favor of the defendants,"
id. at 800. We consequently grant the motion, thereby
allowing Ewing to name as defendants the individual members of the
Board of Regents in their official capacities.
See Patsy v.
Florida Board of Regents, 457 U. S. 496,
457 U. S. 516,
n.19 (1982). Given our resolution of the case, we need not consider
the question whether the relief sought by Ewing would be available
under Eleventh Amendment principles.
[
Footnote 7]
Ewing and the courts below reasoned as follows: In
Board of
Regents v. Roth, 408 U. S. 564,
408 U. S. 577
(1972), this Court held that property interests protected by due
process are "defined by existing rules or understandings that stem
from an independent source such as state law."
See Goss v.
Lopez, 419 U. S. 565,
419 U. S.
572-573 (1975). In a companion case,
Perry v.
Sindermann, 408 U. S. 593,
408 U. S.
601-602 (1972), we held that "agreements implied from
the promisor's words and conduct in the light of the
surrounding circumstances'" could be independent sources of
property interests. See Bishop v. Wood, 426 U.
S. 341, 426 U. S. 344
(1976) (implied contracts). According to an antiquated race
discrimination decision of the Michigan Supreme Court (whose
principal holding has since been overtaken by events), "when one is
admitted to a college, there is an implied understanding that he
shall not be arbitrarily dismissed therefrom." Booker v. Grand
Rapids Medical College, 156 Mich. 95, 99-100, 120 N.W. 589,
591 (1909). From the foregoing, Ewing would have us conclude that
he had a protectible property interest in continued enrollment in
the Inteflex program.
[
Footnote 8]
Tr. of Oral Arg. 3. Consistent with this suggestion,
petitioner's answer to Ewing's complaint
"admit[ted] that, under Michigan law, [Ewing] may have enjoyed a
property right and interest in his continued enrollment in the
Inteflex Program."
App. 21.
[
Footnote 9]
Although there is some ambiguity in its opinion, we understand
the Court of Appeals to have found "clearly erroneous" the District
Court's rejection of Ewing's federal substantive due process claim
solely because of the "undisputed evidence of a consistent pattern
of conduct" -- namely, the
"substantial and uncontroverted evidence in the trial record
that, at the time Ewing took the NBME Part I, medical students were
routinely given a second opportunity to pass it."
742 F.2d at 915. The Court of Appeals found no "rule" to the
effect that medical students are entitled to retake failed
examinations. Indeed, it relied on the University's "promotional
pamphlet entitled
On Becoming a Doctor'" only to the extent
that it "memorialized the consistent practice of the
medical school with respect to students who initially fail that
examination." Id. at 916 (emphasis added).
A property interest in a second examination, however, cannot be
inferred from a consistent practice without some basis in state
law. Yet in this case the Court of Appeals did not reverse the
District Court's finding that Ewing was not even aware of the
contents of the pamphlet, and left standing its holding that the
statements in this promotional tract did not "amoun[t] either to an
unqualified promise to him or . . . a contract right to retake the
examination" under state law.
559 F.
Supp. at 800. We recognize, of course, that "mutually explicit
understandings" may operate to create property interests.
Perry
v. Sindermann, 408 U.S. at
408 U. S. 601.
But such understandings or tacit agreements must support "a
legitimate claim of entitlement" under "
an independent source
such as state law. . . .'" Id. at 408 U. S. 602,
n. 7 (quoting Board of Regents v. Roth, 408 U.S. at
408 U. S.
577). The District Court, it bears emphasis, held that
the University's liberal retesting custom gave rise to no state law
entitlement to retake the NBME Part I. We rejected an argument
similar to Ewing's in Board of Regents v. Roth. In that
case, Dr. Roth asserted a property interest in continued employment
by virtue of the fact that "of four hundred forty-two non-tenured
professors, four were not renewed during [a particular] academic
year." Brief for Respondent in Board of Regents v. Roth,
O.T. 1971, No. 71-162, p. 28 (footnote and citation omitted).
Absent a state statute or university rule or "anything approaching
a `common law' of reemployment," however, we held that Dr. Roth had
no property interest in the renewal of his teaching contract.
Board of Regents v. Roth, 408 U.S. at 408 U. S. 578,
n. 16.
[
Footnote 10]
"In dealing with issues of state law that enter into judgments
of federal courts, we are hesitant to overrule decisions by federal
court skilled in the law of particular states unless their
conclusions are shown to be unreasonable."
Propper v. Clark, 337 U. S. 472,
337 U. S.
486-487 (1949).
Accord, Haring v. Prosise,
462 U. S. 306,
462 U. S. 314,
n. 8 (1983);
Leroy v. Great Western United Corp.,
443 U. S. 173,
443 U. S. 181,
n. 11 (1979);
Butner v. United States, 440 U. S.
48,
440 U. S. 58
(1979);
Bishop v. Wood, 426 U.S. at
426 U. S.
345-347.
[
Footnote 11]
"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."
Board of Curators, Univ. of Mo. v. Horowitz,
435 U. S. 78,
435 U. S. 96, n.
6 (1978) (POWELL, J., concurring).
See id. at
435 U. S. 90-92
(opinion of the Court).
[
Footnote 12]
Academic freedom thrives not only on the independent and
uninhibited exchange of ideas among teachers and students,
see
Keyishian v. Board of Regents, 385 U.S. at
385 U. S. 603;
Sweezy v. New Hampshire, 354 U. S. 234,
354 U. S. 250
(1957) (opinion of Warren, C.J.), but also, and somewhat
inconsistently, on autonomous decisionmaking by the academy itself,
see University of California Regents v. Bakke,
438 U. S. 265,
438 U. S. 312
(1978) (opinion of POWELL, J.);
Sweezy v. New Hampshire,
354 U.S. at
354 U. S. 263
(Frankfurter, J., concurring in result). Discretion to determine,
on academic grounds, who may be admitted to study, has been
described as one of "the four essential freedoms" of a university.
University of California Regents v. Bakke, 438 U.S. at
438 U. S. 312
(opinion of POWELL, J.) (quoting
Sweezy v. New Hampshire,
supra, at
354 U. S. 263
(Frankfurter, J., concurring in result)) (internal quotations
omitted).
[
Footnote 13]
Even viewing the case from Ewing's perspective, we cannot say
that the explanations and extenuating circumstances he offered were
so compelling that their rejection can fairly be described as
irrational. For example, the University might well have concluded
that Ewing's sensitivity to difficulties in his personal life
suggested an inability to handle the stress inherent in a career in
medicine. The inordinate amount of time Ewing devoted to his
extracurricular essay writing may reasonably have revealed to the
University a lack of judgment and an inability to set
priorities.
[
Footnote 14]
Nor does the University's termination of Ewing substantially
deviate from accepted academic norms when compared with its
treatment of other students. To be sure, the University routinely
gave others an opportunity to retake the NBME Part I. But despite
tables recording that some students with more incompletes or low
grades were permitted to retake the examination after failing it
the first time, App. 105-111, and charts indicating that these
students lacked the outside research and honor grade in clinical
work that Ewing received,
id. at 119-120, we are not in a
position to say that these students were "similarly situated" with
Ewing. The Promotion and Review Board presumably considered not
only the raw statistical data but also the nature and seriousness
of the individual deficiencies and their concentration in
particular disciplines -- in Ewing's case, the hard sciences. The
Board was able to take into account the numerous incompletes and
makeup examinations Ewing required to secure even marginally
passing grades, and it could view them in connection with his
reduced course loads. Finally, it was uniquely positioned to
observe Ewing's judgment, self-discipline, and ability to handle
stress, and was thus especially well situated to make the
necessarily subjective judgment of Ewing's prospects for success in
the medical profession. The insusceptibility of promotion decisions
such as this one to rigorous judicial review is borne out by the
fact that 19 other Inteflex students, some with records that a
judge might find "better" than Ewing's, were dismissed by the
faculty without even being allowed to take the NBME Part I a first
time.
Id. at 165-166.
Cf. id. at 66 (nine
Inteflex students terminated after suffering one deficiency and
failing one course after warning).
JUSTICE POWELL, concurring.
Although I join the Court's opinion holding that respondent
presents no violation of the substantive due process right that he
asserts, I think it unnecessary to assume the existence of such a
right on the facts of this case. Respondent alleges that he had a
property interest in his continued enrollment
Page 474 U. S. 229
in the University's Inteflex program, and that his dismissal was
arbitrary and capricious. The dismissal allegedly violated his
substantive due process rights guaranteed by the Fourteenth
Amendment, providing the basis for his claim under 42 U.S.C. §
1983.
I
As the Court correctly points out, respondent's claim to a
property right is dubious at best.
Ante at
474 U. S. 222,
n. 7. Even if one assumes the existence of a property right,
however, not every such right is entitled to the protection of
substantive due process. While property interests are protected by
procedural due process even though the interest is derived from
state law, rather than the Constitution,
Board of Regents v.
Roth, 408 U. S. 564,
408 U. S. 577
(1972), substantive due process rights are created only by the
Constitution.
The history of substantive due process "counsels caution and
restraint."
Moore v. East Cleveland, 431 U.
S. 494,
431 U. S. 502
(1977) (opinion of POWELL, J., for a plurality). The determination
that a substantive due process right exists is a judgment that
"
certain interests require particularly careful scrutiny of the
state needs asserted to justify their abridgment.'" Ibid.,
quoting Poe v. Ullman, 367 U. S. 497,
367 U. S. 543
(1961) (Harlan, J., dissenting). In the context of liberty
interests, this Court has been careful to examine each asserted
interest to determine whether it "merits" the protection of
substantive due process. See, e.g., East Cleveland, supra; Roe
v. Wade, 410 U. S. 113
(1973); Griswold v. Connecticut, 31 U.
S. 479 (1965).
"Each new claim to [substantive due process] protection must be
considered against a background of Constitutional purposes, as they
have been rationally perceived and historically developed."
Poe, supra, at
367 U. S. 544 (Harlan, J., dissenting).
The interest asserted by respondent -- an interest in continued
enrollment from which he derives a right to retake the NBME -- is
essentially a state law contract right. It bears little resemblance
to the fundamental interests that previously
Page 474 U. S. 230
have been viewed as implicitly protected by the Constitution. It
certainly is not closely tied to
"respect for the teachings of history, solid recognition of the
basic values that underlie our society, and wise appreciation of
the great roles that the doctrines of federalism and separation of
powers have played in establishing and preserving American
freedoms,"
Griswold, supra, at
381 U. S. 501
(Harlan, J., concurring in judgment). For these reasons, briefly
summarized, I do not think the fact that Michigan may have labeled
this interest "property" entitles it to join those other, far more
important interests that have heretofore been accorded the
protection of substantive due process.
Cf. Harrah Independent
School District v. Martin, 440 U. S. 194
(1979).
II
I agree fully with the Court's emphasis on the respect and
deference that courts should accord academic decisions made by the
appropriate university authorities. In view of Ewing's academic
record that the Court charitably characterizes as "unfortunate,"
this is a case that never should have been litigated. After a 4-day
trial in a District Court, the case was reviewed by the Court of
Appeals for the Sixth Circuit, and now is the subject of a decision
of the United States Supreme Court. Judicial review of academic
decisions, including those with respect to the admission or
dismissal of students, is rarely appropriate, particularly where
orderly administrative procedures are followed -- as in this case.
*
*
See Board of Curators, Univ. of Mo. v. Horowitz,
435 U. S. 78,
435 U. S. 96, n.
6 (1978) (opinion of POWELL, J.), cited
ante at
474 U. S. 225,
n. 11.
See also University of California Regents v. Bakke,
438 U. S. 265,
438 U. S. 312
(1978) (opinion of POWELL, J.) ("Academic freedom, though not a
specifically enumerated constitutional right, long has been viewed
as a special concern of the First Amendment");
Keyishian v.
Board of Regents, 385 U. S. 589,
385 U. S. 603
(1967).