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Courts Grade Students' Rights

By CURTIS J. SITOMER / July 19, 1990



SUSAN M. didn't like the grades she was getting at law school. So she did what any self-respecting, would-be lawyer would do: She took the school to court. It should be said at the outset that Susan lost her case in New York's Court of Appeals - that state's highest judicial tribunal. So the student, at least for now, is out of school, out of tuition, and has dim prospects for a legal career.

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Even if Susan's particular claim were unwarranted or even frivolous, there is a broader issue here, particularly in these days of burgeoning college tuitions.

Students, even those below the university level, have the same rights as other citizens. Among them is the guarantee of a fair hearing to determine whether the school's actions are arbitrary and unfair.

Teachers and professors have built-in leverage over students, since the grades they dole out can determine the success of an academic career and, in some instances, future professional livelihood. In some cases, professors have traded grades for sexual favors or other things. There is no evidence of this kind of blackmail, however, in this case.

The Court of Appeals, in adjudicating Susan's claim that she deserved another chance to make good in school said that, ``Because her allegations are directed at the pedagogical evaluation of her test grades, a determination best left to educators rather than the courts, we conclude that her petition does not state a judicially cognizable claim.''

Strip away the legal jargon and what the justices held was that Susan needed to solve her problem in the classroom, not the courtroom.

Susan was dismissed from the New York Law School in 1987 at the end of her second year because her grades fell below the required 2.0 [or ``C''] average. She sued for reinstatement and lost at the trial-court level. An appellate court, however, ordered the school to reevaluate her grade in one course.

Lawyers for Susan had argued that her low grades were the result of unfair circumstances.

The student had earlier claimed, albeit unsuccessfully, before an academic-standards committee that she was misled by her constitutional law professor into believing that her exam was a closed-book test, when in fact reference materials were allowed in the classroom. Susan received a ``C-minus'' grade.

In another course, ``Corporations,'' for which she was given a ``D,'' the law student claimed she was penalized 30 percent on her exam for analyzing a question under both Delaware and New York law when only Delaware law was required.

This kind of litigation, in general, might seem frivolous to some, particularly at a time when court dockets are overloaded and many important cases wait in line for several years before being heard by a judge or a jury.

To the student, however, a career hangs in the balance. Tuition fees of $30,000 or more are at stake. He or she has a right to know that grading was fair and without professorial prejudice.

The appellate division of the trial court took this into consideration when it ruled:

``At least when a student's very right to remain in school depends on it, we think the school owes the student some manner of safeguard against the possibility of arbitrary or capricious error in grading ....''

That decision allowed the New York Court of Appeals to take the case further and investigate the facts. Conceivably, Susan could still seek a hearing before the United States Supreme Court.

The nation's highest tribunal is not likely to take the case, however, in the absence of a claim of gender bias or sexual harassment.

At this point, it would appear that Susan needs a sympathetic professor more than a good lawyer.