Ewing v. Board of Regents of University of Michigan

• Decision Date: 06 September 1984
• Docket Number: No. 83-1333,83-1333
• Parties: 19 Ed. Law Rep. 948 Scott E. EWING, Plaintiff-Appellant, v. BOARD OF REGENTS OF the UNIVERSITY OF MICHIGAN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 913

742 F.2d 913

19 Ed. Law Rep. 948

Scott E. EWING, Plaintiff-Appellant, v. BOARD OF REGENTS OF the UNIVERSITY OF MICHIGAN, Defendant-Appellee.

No. 83-1333.

United States Court of Appeals, Sixth Circuit.

Argued July 18, 1984.

Decided Sept. 6, 1984.

Michael M. Conway, argued, Mary K. Butler, Hopkins & Sutter, Chicago, Ill., for plaintiff-appellant.

Peter Davis, argued, Davis & Fajen, Ann Arbor, Mich., for defendant-appellee.

Before KEITH, Circuit Judge, PECK, Senior Circuit Judge, and NEESE, Senior District Judge. ^*

KEITH, Circuit Judge.

This is an appeal by the plaintiff, Scott E. Ewing, from a reported decision of the United States District Court for the Eastern District of Michigan finding in favor of the defendant, the Board of Regents of the University of Michigan, 559 F.Supp. 791 (E.D.Mich.1983). In the district court the plaintiff had sought an order to compel the defendant to allow him to retake the National Board of Medical Examiners' Part I Examination. For the reasons stated below, the decision of the district court is reversed and remanded with instructions that an appropriate order be entered consistent with this opinion.

In 1981, Ewing was enrolled as a student in the University of Michigan's six-year program of combined undergraduate and medical education, known as the Inteflex Program. Ewing sat for and failed the National Board of Medical Examiners' Part I Examination (NBME Part I) in June 1981. Because of his failure of the NBME Part I, Ewing was dismissed from the Inteflex Program. Ewing prosecuted two administrative appeals of the decision to dismiss him. Both appeals were denied as the Inteflex Phase II Promotions and Review Board and the Executive Committee of the Medical School determined to affirm the decision to terminate his registration.

Ewing filed suit in the United States District Court for the Eastern District of Michigan, seeking an injunction that would require the Board to permit him to take the NBME Part I again and, if he passed, to reinstate him with the same status as if he had passed on the first occasion. Ewing's amended complaint asserted claims based upon: (1) the violation under color of state law of his substantive due process rights, which is actionable under 42 U.S.C. Sec. 1983 (Count I); (2) breach of contract (Count II) and (3) the principles of promissory estoppel (Count IV). ¹ A nonjury trial of Counts I, II and IV was held in the district court in Ann Arbor, Michigan, with the Honorable Chief Judge John Feikens presiding, on January 10-12 and 14, 1983. The district court filed an opinion on March 22, 1983, denying each of Ewing's claims and directing that an appropriate order be submitted. 559 F.Supp. 791 (E.D.Mich.1983). Based upon that opinion, the district court entered judgment in favor of the Board on April 11, 1983, and this appeal followed. ²

It is well settled that in order to prevail in a Section 1983 action, the plaintiff has the burden of showing that he was deprived of a constitutional right and that the deprivation occurred under color of state law. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155-56, 98 S.Ct. 1729, 1732-33, 56 L.Ed.2d 185 (1978). It is not disputed that the defendants were acting under color of state law. Ewing v. Board of Regents of the University of Michigan, 552 F.Supp. 881, 883 (E.D.Mich.1982). The issue then, with respect to the Section 1983 claim, is whether Ewing was deprived of a constitutionally cognizable right.

The United States Supreme Court has held that property interests, which may give rise to constitutional protections, are created and defined by existing rules or understandings which stem from independent sources, such as state law. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). The Court has also held that these property interests can arise from explicit contractual provisions or "other agreements implied from the promissor's words or conduct in light of the surrounding circumstances." Perry v. Sindermann, 408 U.S. 593, 601-02, 92 S.Ct. 2694, 2699-700, 33 L.Ed.2d 570 (1972).

In an old racial discrimination case, Booker v. Grand Rapids Medical College, 156 Mich. 95, 120 N.W. 589 (1909), the Michigan Supreme Court discussed the contractual aspects of the relationship between a medical student and his institution. Although, the explicit holding of Booker has since been discredited, the view of the Michigan High Court on the contractual relationship issue is instructive:

In fact, when one is admitted to a college, there is an implied understanding that he shall not be arbitrarily dismissed therefrom. The required fees may be paid annually, and may be no more than fair fees for the advantages received by the student during the year, and yet it is clear that the fees for the first year are, in fact, paid and received with the understanding that the work of the year will not be made fruitless, a graduation and a degree made impossible, by an arbitrary refusal to permit further attendance.... There is no good reason why the law should not recognize, as growing out of these relations, a right of realtors resting in contract to be continued as students by the respondent.

156 Mich. at 99-100, 120 N.W. 589.

Other circuit courts have also agreed in the contractual nature of the relationship between a student and his university. See, e.g., Corso v. Creighton University, 731 F.2d 529, 531 (8th Cir.1984); Williams v. Howard University, 528 F.2d 658, 660 (D.C.Cir.), cert. denied, 429 U.S. 850, 97 S.Ct. 138, 50 L.Ed.2d 123 (1976). Thus, we hold that an implied understanding that a student shall not be arbitrarily dismissed from his university is a property interest, resting in the contractual relationship between the parties, which can give rise to constitutional protections.

In Stevens v. Hunt, 646 F.2d 1168 (6th Cir.1981), this Court discussed the possibility that a university student may have a cause of action for the violation of substantive due process rights arising out of an academic dismissal from a university. In Stevens, this Court referred to the United States Supreme Court's decision in Board of Curators v. Horowitz, 435 U.S. 78, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978), and said:

The Horowitz decision still leaves open the question as to whether such a cause of action exists. Even if a cause of action does exist, it is clear, however, that arbitrary and capricious action on the part of the University officials would be a necessary element in order for plaintiffs to prevail.

In order to establish such arbitrary and capricious action, the plaintiffs must show that there is no rational basis for the University's decision, or that the decision to dismiss was motivated by bad...