University of Texas Medical School at Houston v. Than

Citation874 S.W.2d 839
Decision Date07 April 1994
Docket NumberNo. 01-93-00199-CV,01-93-00199-CV
Parties90 Ed. Law Rep. 1263 UNIVERSITY OF TEXAS MEDICAL SCHOOL AT HOUSTON, M. David Low, M.D., and John Ribble, M.D., Appellants, v. Allan THAN, Appellee. (1st Dist.)
CourtCourt of Appeals of Texas

Dan Morales, Will Pryor, Mary F. Keller, Jorge Vega, Leo L. Barnes, for appellants.

Bruce A. Coane, Joyce A. Keating, Houston, for appellee.

Before OLIVER-PARROTT, C.J., and WILSON and HUTSON-DUNN, JJ.

OPINION

WILSON, Justice.

The University of Texas Medical School at Houston (the School), M. David Low, M.D., and John Ribble, M.D., appeal from the grant of a permanent injunction obtained against them by Allan Than, a student at the School. After a bench trial, the court ordered the School to, among other things, (1) remove from Than's records an "F" assigned to him as a grade on a surgery exam, (2) remove from his records all documents showing Than's expulsion from the School and all documents evidencing the charge of cheating leveled at Than by the School, (3) treat Than as a student who graduated in good standing when responding to requests for information from residency programs and potential employers, and (4) issue Than a diploma and all documents necessary for his participation in residency programs. We affirm.

Fact Summary

On February 22, 1991, Than, then a third-year medical student at the School, sat with some of his classmates for a National Board of Medical Examiners (NBME) exam in surgery. The test was supervised by proctors. During the exam, two of the proctors observed Than repeatedly looking in the direction of the answer sheet of another student, Ted Chiang. The proctors reported their observations to Dr. Margaret McNeese, the Associate Dean for Student Affairs.

Dr. McNeese sent Than's and Chiang's test results to the NBME for a statistical analysis. Dr. Kelley of the NBME responded, but his letter was inconclusive regarding whether it was probable that Than had cheated.

On March 12, Dr. McNeese informed Than that he was accused of cheating on the exam. She and Than met on March 18 in order to discuss the charge. Than denied any wrongdoing.

In a letter dated April 4, 1991, Dr. McNeese advised Than that he was formally charged with committing "academic dishonesty" during the NBME exam. The letter informed Than that the hearing on the charge of academic dishonesty would be held on April 18, 1991.

At the hearing, Than represented himself, and Dr. McNeese represented the School. The parties introduced evidence, examined witnesses, and engaged in oral argument. Dr. Yvonne Russell, the Assistant Vice President for Student Affairs, served as hearing officer. Dr. Russell was selected for this position by the School.

On April 28, Dr. Russell issued her decision. She found sufficient evidence to support the charge of cheating and recommended that Than be expelled. Than's grade on the NBME exam was changed from a "B" to an "F" and he was dismissed from school.

With the assistance of legal counsel, Than appealed his expulsion to Dr. Low, who is President of the University of Texas Health Science Center at Houston. On May 9, Than received a letter from Dr. Ribble, Dean of the School, informing him that he could not participate in any clinical clerkships at the School unless and until Dr. Low "reverse[s] the decision of the hearing officer." Dr. Low upheld Than's expulsion.

On May 24, Than filed suit against the School, Dr. Low, and Dr. Ribble. Claiming that his right to due process had been violated and that the School had breached a contract with him, Than sought temporary and permanent injunctive relief. He asked the court to order the School to reinstate him. The contract claim was eventually disposed of by summary judgment.

The case was removed to federal court, where Than obtained a temporary restraining order allowing him to continue his studies. The case was then returned to state court, where Than was granted a temporary restraining order, and, on November 26, 1991, a temporary injunction. The temporary injunction allowed Than to complete his medical education pending a decision on whether to issue a permanent injunction.

The School, Dr. Low, and Dr. Ribble appealed the grant of the temporary injunction. Prior to oral argument in the appeal, Than asked us to find the School in contempt for an alleged violation of the temporary injunction that occurred when the School refused to submit a certificate of professional education to the University of Virginia Health Science Center. Than had been accepted for a residency there, and the certificate was necessary for his temporary licensure as a Virginia medical resident. We entered remedial orders, requiring the School to allow Than to participate in graduation proceedings but not requiring it to issue him a diploma at the ceremony, and reserved our ruling on the motion for contempt until the submission of the appeal of the temporary injunction. See University of Texas Medical School v. Than, 834 S.W.2d 422, 423-24 (Tex.App.--Houston [1st Dist.] 1992, no writ) (Than I.).

We upheld the temporary injunction and denied Than's motion for contempt. See University of Texas Medical School v. Than, 834 S.W.2d 425, 432 (Tex.App.--Houston [1st Dist.] 1992, no writ) (Than II ). On June 18, 1992, Than filed an amended emergency motion for contempt in the trial court. On June 23, the trial court found the defendants in contempt and ordered the School to issue the certificate.

The defendants sought mandamus relief. We denied their writ of mandamus. See University of Texas Medical School v. O'Neill, No. 01-92-00665-CV (Tex.App.--Houston [1st Dist.], June 30, 1992, orig. proceeding) (unpublished). The School then filed a motion for emergency stay and motion for leave to file writ of mandamus in the Supreme Court of Texas. That court granted the School's motion for emergency stay, ordering that the trial court's contempt order "is ordered stayed pending further order of this Court." See University of Texas Medical School v. O'Neill, 35 Tex.Sup.Ct.J. 990 (July 1, 1992). Than moved to have the stay lifted; the supreme court denied relief. See University of Texas Medical School v. O'Neill, 35 Tex.Sup.Ct.J. 1108 (July 8, 1992). The court noted that its stay order "does not preclude pre-trial discovery or a trial on the merits." See id.

The case was tried before the bench from October 2 until October 7. On December 31, the supreme court lifted its stay of the contempt order. Than again urged his motion for contempt, but the trial court, after a hearing on January 8, 1993, refused to enforce its contempt order.

On January 11, the trial court signed a permanent injunction in favor of Than. As noted above, the court ordered the School to, among other things, (1) remove from Than's records an "F" assigned to him as a grade on a surgery exam, (2) remove from his records all documents showing Than's expulsion from the School and all documents evidencing the charge of cheating leveled at Than by the School, (3) treat Than as a student who graduated in good standing when responding to requests for information from residency programs and potential employers, and (4) issue Than a diploma and all documents necessary for his participation in residency programs. In three points of error, the appellants challenge the permanent injunction.

Point of Error I

The appellants' first point of error is as follows:

As a matter of law, the trial court erred in finding that Than was denied due process because there was no evidence to support the conclusion that Than was denied the due process required in an academic discipline context.

1. The standard of review

In deciding a "no evidence" point, we consider only the evidence and inferences that, viewed in their most favorable light, tend to support the finding. Lester Goodson Pontiac v. Elliott, 775 S.W.2d 395, 398 (Tex.App.--Houston [1st Dist.] 1989, writ denied). We disregard all evidence and inferences to the contrary. Id. If there is probative evidence, more than a scintilla, in support of the finding, the "no evidence" point will be overruled. Id.

Whether to grant a permanent injunction is within the sound discretion of the trial court. Isuani v. Manske-Sheffield Radiology Group, 805 S.W.2d 602, 606 (Tex.App.--Beaumont 1991, writ denied). On appeal, review of the trial court's action is usually limited to whether the action was an abuse of that discretion. Id. at 606-607.

Point of error one presents two preliminary questions: (1) Was Than entitled to due process in the first place? (2) If so, what process was due?

2. Was Than entitled to due process?

In Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), the United States Supreme Court made the following observation:

Since the landmark decision of the Court of Appeals for the Fifth Circuit in Dixon v. Alabama State Board of Education, 294 F.2d 150, cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961), the lower federal courts have uniformly held the Due Process Clause applicable to decisions made by tax-supported educational institutions to remove a student from the institution long enough for the removal to be classified as an expulsion.

419 U.S. at 576 n. 8, 95 S.Ct. at 737 n. 8. An example is Esteban v. Central Missouri State College, 415 F.2d 1077 (8th Cir.1969). In Esteban, two students at the defendant college were put out of school for two semesters (with the right thereafter to apply for readmission) for their involvement in unruly campus demonstrations. Id. at 1079-80. The Eighth Circuit held that, while "a college has the inherent power properly to discipline," it is also true that "procedural due process must be afforded[.]" Id. at 1089.

This Court has followed federal authorities on the issue. We have recognized that, when a student is dismissed from a state university, the requirements of procedural due process apply. See, e.g., Than II, 834...

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