DOE v. BOARD OF REGENTS OF THE UNIVERSITY OF NEBRASKA

So, Doe has to show the UNMC faculty members acted arbitrarily or capriciously. He must show that the UNMC faculty members had no rational basis for their decision or that they dismissed him because of bad faith or ill will unrelated to academic performance. "In the absence of some evidence of arbitrary behavior or bad faith, courts will not substitute their judgment for the necessarily discretionary judgment of a school or university as to a student's educational performance."

Id.

Board of Curators, Univ. of Mo. v. Horowitz, 435 U.S. 78, 98 S. Ct. 948, 55 L. Ed. 2d 124 (1978); Schuler v. University of Minnesota, 788 F.2d 510 (8th Cir. 1986).

State ex rel. Mercurio v. Board of Regents, 213 Neb. 251, 258, 329 N.W.2d 87, 92 (1983).

Here, Doe's complaint shows that he earned a near-failing grade in one clerkship and failed two other clerkships. The evaluation committee informed him that it was concerned about his academic performance and his ability to conduct himself in a professional manner. He was required to sign a contract informing him of the evaluation committee's concerns, and because he violated the terms of the contract, he was dismissed. We cannot say that his dismissal lacked a rational basis.

But Doe also alleges that the defendants violated his right to procedural due process. Specifically, he alleges that the defendants violated his procedural due process rights during the proceedings that led to his dismissal. A plaintiff asserting the inadequacy of procedural due process must first establish that the government deprived him or her of interests which constitute liberty or property interests within the meaning of the Due Process Clause. As stated before, if Doe's dismissal did deprive him of a liberty interest, we conclude that the defendants provided him with as much process as the 14th Amendment requires.

Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Benitez v. Rasmussen, 261 Neb. 806, 626 N.W.2d 209 (2001).

The U.S. Supreme Court has considered the quantum of due process owed by a state-run university to a dismissed medical student. The Court distinguished between dismissals from educational institutions based on an "[a]cademic" rationale and those that may properly be characterized as "disciplinary." The Court held that the dismissal of the medical student in Board of Curators, Univ. of Mo. v. Horowitz was "academic" rather than "disciplinary." The dismissal "rested on the academic judgment of school officials that [the student] did not have the necessary clinical ability to perform adequately as a medical doctor." The Court further noted that an academic dismissal involves "a school's determination of whether a student will make a good medical doctor." It stated that the school's consideration of a student's personal attributes may permissibly factor into this "academic" decision.

Horowitz, supra note 145.

Id., 435 U.S. at 89.

Id., 435 U.S. at 89-90.

Id.

Id., 435 U.S. at 91 n. 6.

Id.

We conclude that Doe's dismissal falls within the ambit of an academic dismissal. Doe acknowledged that he received a marginal grade in his pediatrics clerkship and failing grades in his obstetrics and gynecological clerkship and internal medicine clerkship. He also acknowledges that he received poor professionalism marks from one of his surgery clerkship professors. He does, however, allege that the professionalism evaluation was discriminatory and made in bad faith using information Doe provided to his professors about his disability. But Doe was clearly aware of the defendants' dissatisfaction with his academic performance, and he was given numerous opportunities to discuss these issues with the defendants. He was also aware of the professionalism clause of the academic contract that he signed to remain in medical school and aware that he could be dismissed from medical school if a professor gave him an unsatisfactory professionalism grade.

As in Horowitz, this represents an academic judgment by school officials, officials that have expertise in evaluating whether Doe possessed the attributes necessary to adequately perform his clinical duties as a medical student. In short, the record showed academic justification for Doe's dismissal. And, as discussed by the Court in Horowitz, procedural due process does not require a hearing, either before or after a dismissal decision. For academic dismissals, due process is satisfied if the student was informed of the nature of the faculty's dissatisfaction and the potential for dismissal and if the decision to dismiss was careful and deliberate.

See Horowitz, supra note 145.

Id.

Here, Doe plainly received adequate procedural due process. The UNMC faculty members allowed him to appeal his grades, and he was made aware of all the conditions in the academic contract that he signed, specifically the professionalism clause. He also received a postdismissal hearing before an academic committee and a subsequent administrative appeal. The district court properly dismissed Doe's claims of substantive and procedural due process violations against the UNMC faculty members in their official capacities.

7. BREACH OF CONTRACT

In Doe's final claim, he alleged breach of contract. He did not, however, identify or provide the district court with a contract outlining the obligation breached. He alleges only that the Board's bylaws, which he claims provide an appeal procedure for academic evaluations, created an implicit contract between him and the Board, UNMC, and the UNMC faculty members in their official capacities. And, he claims, the defendants breached the alleged contract by not following the procedure and by discriminating against him based on his disability.

Even though Doe frames his claim as a breach of contract claim, he does not articulate a theory for breach of contract separate from his due process claims. He claims, generally, that the UNMC faculty members failed to follow a set procedure for grade appeals. But Doe admits that he appealed some of his grades and that he appealed his dismissal to the appeals board and to the dean of the medical school. So clearly, the defendants provided him the opportunity to discuss his concerns and appeal his dismissal. To the extent that his contract claim does not differ from his due process claim, it is also without merit. And because Doe has failed to point to an identifiable contractual promise that the defendants did not honor, he has not alleged a contract claim that plausibly entitles him to relief. The district court did not err in dismissing Doe's breach of contract claim.

VI. CONCLUSION

We conclude that the district court erred in dismissing Doe's lawsuit against the UNMC faculty members in their individual capacities without determining whether service by certified mail at UNMC's risk management office was reasonably calculated to notify the defendants, in their individual capacities, of the lawsuit.

Regarding the remaining defendants — the Board, UNMC, and the UNMC faculty members in their official capacities — we conclude that Doe's claims of fraudulent concealment, violations of his due process rights, and breach of contract fail to state a claim for relief that is plausible on its face. But regarding his claims under the ADA and the Rehabilitation Act, we find that the district court erred in dismissing the claims against the Board, UNMC, and the UNMC faculty members in their official capacities.

AFFIRMED IN PART, AND IN PART REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

STEPHAN, J., not participating.