Basil R. Legg, Jr.
Clarksburg, West Virginia
Attorney for the Appellant
Amy M. Smith
Nancy W. Brown
Steptoe & Johnson
Clarksburg, West Virginia
Attorneys for the Appellee
Michael John Aloi
Manchin & Aloi, PLLC
Fairmont, West Virginia
Attorney for Amicus Curiae,
West Virginia Independent
Colleges & Universities, Inc.
JUSTICE ALBRIGHT delivered the Opinion of the Court.
JUSTICE McGRAW dissents and reserves the right to file a dissenting opinion.
1. “A circuit
court's entry of summary judgment is reviewed de novo.” Syl. Pt.
1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
2. “A motion for summary judgment should be granted only when it is clear that
there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable
to clarify the application of the law.” Syl. Pt. 3, Aetna Casualty & Surety Co. v. Federal Ins.
Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963).
3. “The initial responsibility for determining the competence and suitability of
persons to engage in professional careers lies with the professional schools themselves and
if the conduct of educators is not high-handed, arbitrary or capricious, the courts of this state
should give substantial deference to the discretion of officials of colleges and universities with
respect to academic dismissals and such decisions are not ordinarily reviewable by the courts.”
Syl. Pt. 3, North v. W.Va. Bd. of Regents, 175 W.Va. 179, 332 S.E.2d 141 (1985).
4. Legal challenges to academic decisions of private institutions of higher
education are subject to judicial review under an arbitrary and capricious standard.
Albright, Justice:
Betty Bender (hereinafter “Appellant”) appeals from the June 19, 2001, order
of the Circuit Court of Barbour County by which the lower court granted summary judgment
in favor of Alderson-Broaddus College (hereinafter “Appellee” or “Appellee College”) on the
ground that a private college may increase the academic requirements for completion of a
sequential multi-year degree program after a student has enrolled and completed a portion of
the program as long as the change is not arbitrary and capricious. Upon due consideration of
the petition, briefs, record and arguments, we affirm the decision of the circuit court for the
reasons set forth below.
Statements regarding amendment of any college policies were included in
various college publications available to students during the time Appellant was deciding
which school to attend as well as during her term of attendance at Appellee college. The inside
covers of Appellee College's 1995-1997 Catalog and 1999-2001 Catalog stated:
During the fall 1998 semester, Appellee's Nursing
Department Curriculum Committee embarked upon a study of the grading scale
policy. According to the minutes of its September 9, 1998, meeting, this committee
decided to examine data from previous years to determine if students receiving
the grade of “C” with scores in the low seventy percent range were
more likely to fail the National Council Licensure Examination. After reviewing
all of the compiled data, the Curriculum Committee voted in October 1998 to
recommend a new grading scale whereby a minimum score of seventy-five percent
would be required in order to earn a “C” grade. The new grading
scale was ultimately approved in December 1998, with its implementation delayed
until the fall 1999 semester so the nursing students would receive advance
notice of the change.
(See footnote 5) The revised grade scale was applied to
all nursing students, including those students who had enrolled under the
more lenient seventy percent standard.
(See footnote 6)
Appellant was able to meet the new grading standard in her classes during the fall
1999 semester. However, in the spring 2000 semester she failed to achieve the minimum
score of seventy-five percent in one nursing class and received a grade of “D”; the score she
attained in that class was above seventy percent, for which she would have received a grade of
“C” under the policy in effect at the time of her admission to the nursing program. Because
Appellant could not repeat this required class until the following spring semester, it became
impossible for her to complete the nursing program within five years from her admission to
the school. Therefore, Appellee academically expelled Appellant from the nursing program
in May 2000. On August 10, 2000, Appellant filed a civil action
against Appellee seeking injunctive relief as well as damages. After conducting
an evidentiary hearing, the lower court issued an order on October 15, 2000,
by which it denied the requested injunction but allowed the action to proceed
upon the issue of damages. According to the October 15 order, the two theories
on which Appellant would proceed with regard to damages were breach of contract
and promissory estoppel.
(See footnote 7)
The sum of Appellant's argument to the lower court was that she and the college
had a contractual relationship based on the representations made in or reasonably inferred from
the publications of Appellee College as well as the verbal assurances made by Dr. Boni.
Appellant maintained that by the terms of her contract with Appellee the nursing program
grading requirements would not change during the course of her enrollment. Therefore, when
Appellee began judging Appellant's course work against a different grading standard than that
in effect at the time she enrolled, Appellee breached its contract with her. Appellant
alternatively argued that the facts supported an award of damages against the college under the
doctrine of promissory estoppel.
Following discovery, the parties filed cross-motions for summary judgment
which were the subject of a hearing on June 8, 2000. Subsequently, the circuit court granted
summary judgment in Appellee's favor on June 19, 2001. The summary judgment order
contained the following rulings by the lower court:
13. The record is devoid of any facts to establish the
action of A-B College in modifying its grading scale as arbitrary
and capricious. . . .
The foregoing notwithstanding, this Court has not condoned absolute judicial
deference with regard to academic decisions made by institutions of higher education. We
announced in North v. West Virginia Board of Regents, 175 W.Va. 179, 332 S.E.2d 141
(1985), when judicial review of such decisions is appropriate by saying in syllabus point three
that: We now turn to an examination of whether the actions
of the Appellee College in the case before us were arbitrary and capricious.
In applying this standard we are guided by this Court's holding in syllabus
point three of
Based upon our review of the record as explained below, we do not believe
Appellee College acted arbitrarily or capriciously in instituting its modified grade scale.
Given Appellee's clear and express reservation for making policy changes, as stated in the
college's catalogs, handbooks and procedure manuals during the relevant period, it was
reasonable for Appellee to expect students to anticipate and comply with changes made to its
grading scale. An update of degree requirements is often necessary in a profession such as
nursing and, as disclosed in the record, the college undertook the study of the grading scale out
of concern with the performance of its graduates on the nursing board examination. A letter
in the record from the Board of Examiners for Registered Professional Nurses to Appellee's
nursing department supports this concern since it related that the pass rate on the nursing board
examination by the school's graduates was below the established standard. Likewise, the
manner in which the modification was studied, adopted and implemented by the school reflects
a balance of concern for the welfare not only of the institution but also the student population.
The record shows that a variety of data was examined and an extensive review process was
conducted by the school before the modification to the grade scale was made. We note further
that although the grade modification was approved in December 1998, the change was not
implemented until the fall 1999 semester, which the record reflects was done in order to
enable the Department of Nursing to provide ample advance notification to its students. The
school's concern with adequate advance notice of the change is borne out through Appellant's
testimony, which revealed that she received information regarding the implementation of a
grade scale modification in the following ways: memorandum from Dr. Boni, dated July 23,
1999; verbal instruction during the mandatory health sciences orientation on August 24, 1999;
and verbal explanation by all of her nursing instructors as well as through written materials the
instructors distributed to their classes. Furthermore, and perhaps most important, the record
shows that the college made bona fide efforts to assist the students in meeting the revised grading standard. There is documentation in the record of Appellant being
routinely apprised by her instructors regarding her academic progress in a
class and that the instructors extended offers of various types of assistance
with studying when Appellant began experiencing difficulty in her class performance.
Even after Appellant was dismissed from the nursing program, Appellee encouraged
Appellant to complete her degree at the college in a field of study more suited
to her abilities. Based upon this and other undisputed and substantial evidence
in the record, the actions of the college in modifying and implementing the
modification of its grade scale were not unreasonable, arbitrary or capricious.
Consequently, we affirm the decision of the circuit court.
(See footnote 9)
To be clear, our decision today does not constitute the wholesale approval of
grading scale modifications by institutions of higher education. Certainly, we may have
reached a different conclusion had the evidence not shown that the grading scale change
undertaken by the college reflected a measure of concern for the enhancement of the student's
educational experience as well as advancement of the institution's reputation and goals.
Accordingly, we affirm the June 19, 2001, order of the Circuit Court of Barbour
County granting summary judgment in favor of Appellee College.
Appellant became a student at Appellee College in the
fall of 1996 and was accepted into Appellee's nursing program at the beginning
of her sophomore year.
(See footnote 1) According to Appellant, before she enrolled
at the school, she and her husband met with the chair of Appellee's nursing
department, Dr. Sharon Boni, to discuss the academic standards of the nursing
program. Appellant asserts that Dr. Boni explained that students were required
to complete the nursing program within five years
(See footnote 2) of
being admitted to the Appellee College and that the minimum qualifications
for graduation from the nursing program were a grade of “C” (defined
also as a grade of at least seventy percent) in all required nursing courses
and a cumulative grade point average (hereinafter “G.P.A.”) of 2.0
on a scale of 4.0 in all course work. Appellant further maintains that she
and her husband pointedly asked Dr. Boni during this meeting whether the Appellee
College could increase these minimum academic requirements after Appellant
was admitted into the nursing program. Appellant contends that Dr. Boni assured
her that these academic requirements could not, by law, be changed so as to
affect students already accepted into the multi-year nursing program.
(See footnote 3)
The provisions of this bulletin are not to be regarded as an
irrevocable contract between the student and the College. The
College reserves the right to make and designate the effective
date of changes in curricula, course offerings, fees, requirements
for graduation, and other regulations at any time such changes are
considered to be desirable or necessary.
The catalogs also contained information regarding grade point averages, but there was no
reference to the grading scale. The Policy and Procedure Manual of the Department of
Nursing at Appellee College, which all nursing students were required to purchase and
maintain, contained the following provision regarding amendment to nursing program policies:
Policies affecting nursing students and/or nursing faculty are
developed and/or revised through the action of various nursing
department committees and finalized by the Nursing Faculty
Organization. Copies of revised policies will be distributed to
students and faculty with discussions as appropriate.
The Policy and Procedure Manual contained information regarding G.P.A. requirements
and the current grading scale.
(See footnote 4) Additionally, the Student Handbook for the
school years 1995- 1997, 1998-2000, 1999-2001 contained the following reservation
regarding college policies:
The provisions of this handbook are not to be regarded as an
irrevocable contract between the student and the College. The
College reserves the right to make and designate the effective
date of changes in college policies and other regulations at any
time such changes are considered to be desirable or necessary.
After deciding to attend Appellee College, Appellant completed her first year
(1996-97) of general studies and her first year in the nursing program (1997-98) without
apparent difficulty. However, in the fall of 1998, Appellant received a final grade of “D”in two
nursing courses. As a result, Appellant could not take nursing courses in the 1999 spring
semester because the classes she needed to repeat due to her unsatisfactory performance were
only offered during the fall semester and were prerequisites to the nursing courses offered
during the spring term. Consequently, Appellant enrolled in general studies classes in the
spring of 1999 and then registered in the fall of 1999 to repeat the nursing classes in which
she received “D” grades.
11. The nature of the relationship between the Plaintiff
and A-B College is clearly contractual in nature; however,
implicit in that contract is a right to change the college's
academic degree requirements if such changes are not arbitrary
and capricious.
12. In regard to the Plaintiff's claim that Dr. Boni's oral
statements are binding on the college, the Court finds that
whether or not Dr. Boni made the statements attributed to her by
the Plaintiff is immaterial. . . . A-B College clearly had the right
to unilaterally change the grading scale of the nursing program as
long as such change was not arbitrary and capricious.
It is from the June 19, 2001, order that Appellant filed the instant appeal.
As we held in syllabus point one of Painter v. Peavy, 192 W.Va. 189, 451
S.E.2d 755 (1994), “[ a] circuit court's entry of summary judgment is reviewed de novo.” We
have also recognized that: “A motion for summary judgment should be granted only when it is
clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not
desirable to clarify the application of the law.” Syl. Pt. 3, Aetna Casualty & Surety Co. v.
Federal Ins. Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963).
At issue
in this case is not whether a contract existed between the parties. Rather,
Appellant assigns error to the lower court's finding that the actions of Appellee
were not arbitrary and capricious under the terms of the contract.
More specifically, Appellant argues that Appellee College acted arbitrarily
and capriciously when it changed and applied a different grading scale to her
work than that which was in place when she enrolled in the nursing program and
such behavior amounted to a breach of contract or, in the alternative, the basis
for a successful promissory estoppel claim.
Initially we note that this Court previously has adopted the mainstream position
that judicial review of purely academic decisions of a post-secondary school is decidedly
limited. North v. W.Va. Bd. of Regents, 175 W.Va. 179, 184-85, 332 S.E.2d 141, 146-47
(1985). The New York Court of Appeals aptly summarized the public policy basis for showing
judicial deference in this regard by saying:
When an educational institution issues a diploma to one of its
students, it is, in effect, certifying to society that the student
possesses all of the knowledge and skills that are required by his
chosen discipline. In order for society to be able to have
complete confidence in the credentials dispensed by academic
institutions, however, it is essential that the decisions
surrounding the issuance of these credentials be left to the sound
judgment of the professional educators who monitor the progress
of their students on a regular basis.
Ollson v. Board of Higher Ed., 402 N.E.2d 1150, 1153 (N.Y. 1980). Some federal courts
have observed that the judiciary is particularly ill-equipped to evaluate a school's academic
decisions with respect to the health care field. See, e.g., Doherty v. Southern Coll. of
Optometry, 862 F.2d 570 (6th Cir. 1988); Jansen v. Emory Univ., 440 F.Supp. 1060 (N.D. Ga.
1977), aff'd, 579 F.2d 45 (5th Cir. 1978); Connelly v. Univ. of Vermont and State Agric.
Coll., 244 F. Supp. 156 (D. Vt. 1965).
[t]he initial responsibility for determining the competence and
suitability of persons to engage in professional careers lies with
the professional schools themselves and if the conduct of
educators is not high-handed, arbitrary or capricious, the courts
of this state should give substantial deference to the discretion of
officials of colleges and universities with respect to academic
dismissals and such decisions are not ordinarily reviewable by the
courts.
Id. at 181, 332 S.E.2d at 143. In other words, when faced with a claim
that the actions of a university or college with regard to academic decisions
are arbitrary and capricious, then the historical deference granted by courts
to the judgment of higher education institutions is set aside.
(See footnote 8) Although
the controversy in North concerned the dismissal of a medical student
from a public institution, we see no reason why the same arbitrary and capricious
standard should not apply to the comparable decisions of a private institution.
A number of jurisdictions have adopted this position. See, e.g., Ishibashi
v. Gonzaga Univ., 2000 WL 1156899 (Wash. App. August 11, 2000); Goodwin
v. Keuka Coll., 929 F.Supp. 90, (W.D.N.Y. 1995); Frederick v. Northwestern
Univ. Dental School, 617 N.E.2d 382 (Ill. App. Ct. 1993); Love v. Duke
Univ., 776 F. Supp. 1070 (M.D.N.C. 1991); Babcock v. New Orleans Baptist
Theological Seminary, 554 So.2d 90 (La.Ct.App. 1989); Abbariao v. Hamline
Univ. School of Law, 258 N.W.2d 108
(Minn. 1977); DeMarco v. Univ. of Health Sciences/Chicago Medical School, 352 N.E.2d
356 (Ill. App. Ct. 1976); Frank v. Marquette Univ., 245 N.W. 125 (Wis. 1932).
Consequently we hold that legal challenges to academic decisions of private institutions of
higher education are subject to judicial review under an arbitrary and capricious standard.
Therefore, we find as a matter of law that the lower court in the instant case applied the correct
standard of review.
Footnote: 1