Who Grades Students? Some Legal Cases, Some Best Practices
By Donna R. Euben, AAUP Counsel
The role of faculty and administrators in assigning grades to students continues to grab the headlines in the higher education community.
The provost of St. Augustine's College in North Carolina resigned to avoid dismissing a professor at the direction of the college president, who decided to allow 11 seniors to graduate by "changing their failing grades in a calculus course to passing ones." The provost declined to remove the professor from his teaching duties "merely because he appropriately awarded 11 seniors (whose performance in his advanced mathematics course through mid-term is dismal) a failing grade." See Alison Schneider, "Provost of N.C. College Resigns in Clash with President Over Grades," The Chronicle of Higher Education (April 19, 2000).
A professor at Northeast Mississippi Community College was awarded $571,000 by a federal jury in 1998 in a lawsuit that alleged that she was fired for criticizing the school's special treatment of a basketball star, specifically her refusal to change the student's grade from an "F" in her psychology course. She claimed the student had not attended class and failed to take the final exam. Associated Press, "Jury Finds Junior College Violated Professor's Free-Speech Rights" (Dec. 7, 1998); see also Mike Waller, "Professor Sues 2-Year College Over Changes to Athlete's Grade," The Chronicle of Higher Education (May 2, 1997).
I. The Relationship of Institutional and Individual Academic Freedom
Federal courts have referred to the academic freedom of educational institutions as well as of individuals within those institutions (e.g., faculty members and students):
There are "four essential freedoms of a university--to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study." Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring) (reversing a contempt judgment against a professor who had refused to answer questions concerning a lecture delivered at the state university).
"Our nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. . . The classroom is peculiarly the 'marketplace of ideas.' The nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth 'out of a multitude of tongues, [rather] than through any kind of authoritative selection.' Keyishian v. Board of Regents of the Univ. of New York, 385 U.S. 589, 603 (1967) (holding that faculty members' First Amendment rights were violated by a state requirement that they sign a certificate stating that they were not and never had been Communists and by vague and overbroad restrictions on verbal and written expression).
These conceptions of academic freedom can be mutually reinforcing in the search for knowledge and truth in higher education, but they can also come into conflict when forces within the institutions themselves threaten the free expression rights of faculty members or students. See Regents of the University of Michigan v. Ewing, 474 U.S. 214, 226 n.12 (1985) ("Academic freedom thrives not only on the independent and uninhibited exchange of ideas among teachers and students . . . but also, and somewhat inconsistently, on autonomous decision making by the academy itself."). But see Urofsky v. Gilmore, 216 F.3d 401 (4th Cir. 2000), cert. denied, 531 U.S. 1070 (2001). ("[A]ny right of 'academic freedom' . . . inheres in the University, not in individual professors. . . .")
Although the pressures on academic freedom have changed over time in conjunction with political and social developments, they continue to arise from a wide variety of sources and ideological perspectives. Currently, assignment of grades has been a central issue of controversy in the academy.
II. AAUP Policies Applicable to Grading
1940 Statement of Principles on Academic Freedom and Tenure: A faculty right that flows from a "teacher's freedom in the classroom" is the assessment of student academic performance, including the assignment of particular grades.
The Assignment of Course Grades and Student Appeals: This AAUP statement establishes the following principles in assigning grades: (1) the faculty has the responsibility for the assignment of grades; (2) students should be free from prejudicial or capricious grading; and (3) no grade may be assigned or changed without faculty authorization. It provides, in relevant part, that administrators should not "substitute their judgment for that of the faculty concerning the assignment of a grade. The review of a student complaint over a grade should be by faculty, under procedures adopted by faculty, and any resulting change in grade should be by faculty authorization."
Statement on Professional Ethics: This AAUP policy provides:
As teachers, professors encourage the free pursuit of learning in their students. They hold before them the best scholarly and ethical standards of their discipline. Professors demonstrate respect for students as individuals, and adhere to their proper roles as intellectual guides and counselors. Professors make every reasonable effort to foster honest academic conduct and to ensure that their evaluations of students reflect each student's true merit.
Statement on Government of Colleges and Universities: This statement, which was originally formulated by the AAUP, the American Council on Education, and the Association of Governing Boards, provides:
The faculty sets the requirements for the degrees offered in course, determines when the requirements have been met, and authorizes the president and board to grant the degrees thus achieved.
III. Some Case Law on Grading
The faculty bears the responsibility for evaluating students, and concepts of judicial deference to academic judgments are grounded, at least in part, on the faculty's special expertise in this regard. As the Supreme Court declared in Regents of the University of Michigan v. Ewing, 474 U.S. 214 (1985):
When judges are asked to review the substance of a genuinely academic decision . . . they should show great respect for the faculty's professional judgment. 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.
As the Sixth Circuit recognized in a K-12 case: "Grades must be given by teachers in the classroom, just as cases are decided in the courtroom . . . teachers therefore must be given broad discretion to give grades. . . ." Settle v. Dickson County School Board, 53 F.3d 152 (6th Cir. 1995).
A. Academic Freedom
The AAUP believes that the First Amendment right to academic freedom should protect academically related speech of professors, including the assignment of grades to students. Assigning grades is part of a professor's academic responsibilities and does not fall into the realm of administrative prerogatives.
The U.S. Supreme Court has not directly addressed the issue of whether the assignment of grades is protected by the First Amendment right of individual professors to academic freedom. In Board of Curators of the University of Missouri v. Horowitz, 435 U.S. 78 (1978), which upheld a faculty decision to dismiss a medical student from school, the Court opined that "[l]ike the decision of an individual professor as to the proper grade for a student in his course, the determination of whether to dismiss a student for academic reasons requires an expert evaluation of cumulative information and is not readily adapted to the procedural tools of judicial or administrative decisionmaking." In Justice Powell's concurrence, he opined that professors should retain "the widest range of discretion" in evaluating the academic performance of students.
Several federal appellate courts have considered the First Amendment protections afforded to professors in assigning grades:
Parate v. Isibor, 868 F.2d 821 (6th Cir 1986): Natthu Parate, who taught civil engineering at Tennessee State University, sued the administration when his contract to teach was not renewed because he refused to sign a memorandum changing a student's grade from "B" to "A." The court found that the university had violated the First Amendment, reasoning that the "assignment of a letter grade . . . is a symbolic communication intended to send a specific message to the student . . . [and] is entitled to some measure of First Amendment protection." In so doing, the court found the "message communicated by the letter grade 'A' virtually indistinguishable from the message communicated by a formal written evaluation indicating 'excellent work.' Both communicative acts represent symbols that transmit a unique message." And so, the court ruled, an "individual professor may not be compelled, by university officials, to change a grade that the professor previously assigned to the student." The court explained:
The freedom of the university professor to assign grades according to his own professional judgment is of substantial importance to that professor. To effectively teach her students, the professor must initially evaluate their relative skills, abilities, and knowledge. The professor must then determine whether students have absorbed the course material; whether a new, more advanced topic should be introduced; or whether a review of the previous material must be undertaken. Thus, the professor's evaluation of her students and assignment of their grades is central to the professor's teaching method.
And so, "[a]lthough the individual professor does not escape the reasonable review of university officials in the assignment of grades, she should remain free to decide, according to her own professional judgment, what grades to assign and what grades not to assign."
At the same time, the court explained that a professor "has no constitutional interest in the grades which his students ultimately receive." Accordingly, the court distinguished between the violation of a professor's First Amendment rights—when an administrator forces a professor to change a student's grade—and when a professor's free speech rights are not implicated--when an administrator changes the student's grade on his or her own. In so doing, the court rejected the administration's claim to academic freedom: "Arguing from their First Amendment right to academic freedom, the defendants assert an interest in supervising and reviewing the grading policies of their nontenured professors. If they deemed Parate's grade assignment improper, . . . the defendants could have achieved their goals by administratively changing" the students' grades.
See AAUP, "Academic Freedom and Tenure: Tennessee State University," Academe 39-44 (May-June 1987) (investigating Parate's case). (AAUP filed an amicus brief in Parate.)
Hillis v. Stephen F. Austin State University, 665 F.2d 547 (5th Cir.), cert. denied, 457 U.S. 1106 (1982): The Fifth Circuit ruled that an administrator who changed a student's grade from "withhold" to "B" did not violate the First Amendment right of a professor's academic freedom in light of numerous instances of the professor's "continual lack of cooperation and unacceptable conduct, of which the grading incident was just one example." In so doing, the court noted that AAUP's "Committee A" "concurred in the finding that Hillis' academic freedom had not been violated."
Lovelace v. Southeastern Massachusetts University, 793 F.2d 419 (1st Cir. 1986): The professor claimed his contract was not renewed "because he refused to inflate his grades or lower his expectations and teaching standards." The First Circuit held the nontenured professor's dismissal proper because he failed to comply with the university's published grading criteria.
Berg v. Bruce, 112 F.3d 322 (8th Cir. 1996): In the K-12 context, the court relied on Parate when it declined to determine whether the First Amendment allowed a third grade teacher "to assign grades as she saw fit"; "there is no evidence that [the principal] ordered or attempted to get [the teacher] to change any particular grade."
B. Due Process
Courts will review procedures used by a college to determine whether a grade is fair, i.e., not arbitrary, capricious, or in bad faith. Ewing, 474 U.S. at 214; Board of Curators v. Horowitz, 435 U.S. 78 (1979)
Wozniak v. Conry, 236 F.3d 888 (7th Cir.), cert. denied, 121 S.Ct. 2243 (2001): Louis Wozniak, a tenured professor at the undergraduate engineering school of the University of Illinois at Urbana-Champaign, sued the administration for violating his due process rights when it reassigned him from teaching owing to his failure to comply with established grading policies. The university's policy "requires professors to grade on a prescribed curve and to submit their grading materials." Wozniak turned in grades for two of his courses, but refused to submit the required materials for review. Wozniak claimed that the university barred him from teaching further classes, cancelled his research funds, and reassigned him to manage the department's webpage. His salary and title remained unaffected and he remained on the faculty.
The Seventh Circuit ruled that the university did not violate the professor's due process rights because he declined to participate in numerous opportunities for review within the university. The court opined that due process had been afforded, especially where no material dispute existed about the professor's refusal to comply with the requirement that he submit his grading materials for review within the university: "Wozniak refused to follow the University's grading rules, and in this suit he trumpets a claim of a right to defy them." The court continued: "A faculty member is hardly in a position to argue that the opportunity to submit an explanation or statement of position in writing is inadequate; professors make their living by the written word. . . . " The court further observed,
No teacher has a fundamental right to hand in random or skewed grades, or to pretend that 95% of his students are better (or worse) than average. No person has a fundamental right to teach undergraduate engineering classes without following the university's grading procedures.
In so doing, the court noted, "Some universities offer their faculty more control over grading than [in this case] and maybe discretion is good. But competition among different systems of evaluation at different universities, not federal judges, must settle the question which approach is best. Each university may decide for itself how the authority to assign grades is allocated within its faculty.
"Sylvester v. Texas Southern University, 957 F. Supp. 944 (S.D. Tex. 1997): Karen Sylvester, a law student at the university's Thurgood Marshall School of law, took James Bullock's "wills and trusts" course. Bullock assigned Sylvester a "D," which dropped the student's class rank from first to third. Sylvester protested the grade orally and in writing on numerous occasions, and the school never responded. Bullock stated that he had lost her exam, but under orders, found that exam. TSU provided procedures for disputing grades, including that the academic standing committee would review protested grades and that the dean's office would notify students of the disposition of the matter in writing, neither of which occurred. Throughout the court-mandated review procedures, Bullock refused to provide a complete set of exam answers. The court ruled that, "[w]hile it is true that the assignment of a test grade is a purely academic evaluation, Sylvester is entitled to due process in that evaluation." The court opined, "Between active manipulation and sullen intransigence, the faculty, embodying arbitrary government, have mistreated a student confided to their charge." In the end, the court changed the student's grade to "pass," which resulted in her becoming joint valedictorian.
Ochsner v. Board of Trustees of Wash. Community College, 811 P.2d 985 (Wash. Ct. App. 1991): A professor calculated grades according to a written policy that was based, in part, on attendance. The professor failed a student as a result of excessive absenteeism. Evidence indicated that the professor failed to "apply the attendance policy evenly," and the court found a factual dispute regarding whether the grade assigned was arbitrary and capricious.
Note: Some states have laws that regulate grade changes, at least in the K-12 context. See, e.g., Eureka Teachers Ass'n v. Board of Educ., 244 Cal. Rptr. 240 (Cal. App. 1988): The state appellate court ruled that a state statute, which provides that a teacher's grade is final, absent clerical or mechanical mistake, fraud, bad faith, or incompetence, required the board of education to render findings of fact to change grades. The board failed to make such findings, and the court was "unwilling" to affirm the claims against the professor because "bad faith against a professional is a serious challenge to [the teacher's] integrity and professional reputation."
IV. Some Recent Grading Cases
Brown v. Armenti, 247 F.3d 69 (3rd Cir. 2001): Robert A. Brown, a tenured professor at California University of Pennsylvania, sued the president of the university, claiming that Angelo Armenti, Jr. ordered him to change a student's grade from an "F" to an incomplete, which Brown refused to do. (In spring 1994 Brown failed a graduate student in a clinical education course, alleging that she attended only three of fifteen classes.)
The Third Circuit ruled in favor of the university president. The court concluded that a "public university professor does not have a First Amendment right to expression via the school's grade assignment procedures." It opined: "Because grading is pedagogic, the assignment of the grade is subsumed under the university's freedom to determine how a course is to be taught." In so ruling, the court rejected the Parate decision and, instead, embraced the Edwards case, described below, because the decision offered "a more realistic view of the university-professor relationship."
In Brown the Third Circuit relied, to a great extent, on a troubling 1999 decision in the same circuit, Edwards v. California University of Pennsylvania, 156 F.3d 488 (3rd Cir. 1998), cert. denied, 525 U.S. 1143 (1999). In that case, Dilawar M. Edwards, a tenured professor in media studies (at the same institution as Brown), sued the administration for violating his right to free speech by restricting his choice of classroom materials in an educational media course. A student alleged that Edwards was using his course to advance his religious ideas. The court declined to review the case under the standard of whether the professor's course content was "reasonably related to a legitimate educational interest" because "a public university professor does not have a First Amendment right to decide what will be taught in the classroom."
Professor Brown recently decided to drop his lawsuit. He retired from the university, and his attorney was quoted as saying that Brown "grew tired of the legal fight and was not eager to spend at least $25,000 to appeal the circuit court's ruling" to the entire Third Circuit. "Professor Drops Lawsuit," Pittsburgh Post-Gazette (Sept. 6, 2001).
See also Robert O'Neil, "Free Speech for Professors: 2 Court Rulings Sound New Alarms," The Chronicle of Higher Education (op-ed) (June 1, 2001) (discussing Brown case).
Yohn v. University of Michigan (pending): Professor L. Keith Yohn, an associate professor of dentistry, is suing the institution for changing the grades of make-up exams of two students from "Fs" to a "C" and "C+." He alleges a number of legal claims, including that changing the failing grades to passing ones violated his free speech rights. "Dentistry Professor Sues U. of Michigan Over Grade Change," The Chronicle of Higher Education (Feb. 11, 2000). A panel of four professors unanimously flunked the two students, who were taking the clinical course for a second time. The acting associate dean then informed the panel that the students would be allowed to retake the exam and that other faculty members would grade it. The students retook the exam, which involved crafting temporary bridges, and received passing grades. According to the district court, "[t]he 'F' grades originally assigned by the panel were never recorded on the students' official transcripts."
In May 2001 the district court ruled in favor of the university on the First Amendment claim. Relying on Parate, the court found that Yohn had failed to allege that he was forced to change the students' grades and, "[t]herefore, the evidence does not support a First Amendment violation of Plaintiff's right to academic freedom."
The matter is currently pending before the Sixth Circuit. Yohn contends that the district court erred in ruling that the administration's "arbitrarily vacating 'F' grades assigned to students" failed to violate his First Amendment right of free speech. The university argues that Yohn's legal rights were not violated by the grade changing. The university states that while Yohn was asked to grade the clinical exam, and the panel submitted its grade to the associate dean, "an administrative decision was made not to record the grades." Moreover, "at no time was Plaintiff asked to change the grade he submitted with the other faculty members." Instead, the dean asked another faculty panel to grade the students' next make-up exam. Citing Parate, the university asserts that "an administrative change to a student's grade after submission by the faculty member does not violate or abridge any constitutional interest of the professor."
V. Some Practical Suggestions
Faculty and administration should develop clear, written grading policies, governing any and all grading standards and appeal procedures.
Such policies should be widely distributed to students, faculty members, and administrators.
A grade appeals committee should ordinarily consist of faculty members in the department or in closely-related fields.
Once a grade appeal policy is established, it should be applied in a fair and consistent fashion.
Every effort should be made to resolve differences about grades, including between faculty and administration, within the university.
A grade appeal policy "should . . . be available for reviewing allegations that inappropriate criteria were used in determining the grade or that the instructor did not adhere to stated procedures or grading standards."
Administrators should avoid unilaterally changing a grade assigned by a faculty member and usurping the faculty prerogative to evaluate students academically.
See generally Ralph D. Mawdsley, "Developing and Implementing A Higher Education Policy on Grade Disputes," 124 Education Law Reporter 13 (1998).