Ewing v. BD. OF REGENTS OF UNIVERSITY OF MICHIGAN, Civ. A. No. 82-60271.

• Decision Date: 22 March 1983
• Docket Number: Civ. A. No. 82-60271.
• Citation: 559 F. Supp. 791
• Parties: Scott E. EWING, Plaintiff, v. BOARD OF REGENTS OF the UNIVERSITY OF MICHIGAN, Defendant.
• Court: U.S. District Court — Western District of Michigan

559 F. Supp. 791

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

Civ. A. No. 82-60271.

United States District Court, E.D. Michigan, S.D.

March 22, 1983.

COPYRIGHT MATERIAL OMITTED

Michael M. Conway, Mary K. Butler, Hopkins & Sutter, Chicago, Ill., Harry Schulman, Schulman & Bell Ltd., Chicago, Ill., Timothy Fryhoff, Buesser, Buesser, Snyder & Blank, Bloomfield Hills, Mich., for plaintiff.

Peter Davis, Davis & Fajen, Ann Arbor, Mich., for defendant.

OPINION

FEIKENS, Chief Judge.

I.

Plaintiff, Scott E. Ewing (Ewing), was admitted as a student to the Inteflex program at the University of Michigan in the fall semester 1975; his purpose—to become a medical doctor. This six (6) year program is governed by a University Policy Committee with the Literature, Science and Arts College responsible for the curriculum awarding the B.A. (B.S.) degree and the Medical School responsible for the curriculum awarding the M.D. degree (Defendant's Exhibit 1).

The program is planned to educate individuals whose academic ability, based on high school grades and test scores, is on the same level as those who qualify for admission to the Medical School. The program runs on a ten-month academic year for the first four years. The first year preceptorship is usually over by the middle of June, but in the subsequent two years, spring half-term classes meet until the end of June. The fourth year classroom courses end in early May, allowing students to prepare for Part I of the National Board of Medical Examiners (NBME) given in mid-June. A three-week basic clerkship begins in early July, after which the Inteflex student enters the Medical School's clinical phase which ends in the spring of the sixth year with the award of the M.D. degree (Defendant's Exhibit 1, page 4).

In this case, Ewing seeks an order compelling the defendants to permit him to retake Part I of the NBME. He does so because after he failed that examination, he was dismissed from the Inteflex program.

A.

In the fall of 1975, when Ewing enrolled in the program, he encountered immediate difficulty in handling the work and he did not take the final examination in Biology. It was not until the following semester that he completed this course and received a C. His performance in his other first semester courses was as follows: a C in Chemistry 120, a C in his writing course, and an incomplete in the Freshman Seminar. In the next semester he took Chemistry 220, a Freshman Seminar, and Psychology 504. He received a B in the Freshman Seminar, a C in Chemistry 220, but he withdrew from Psychology 504. He was advised at that time that he could not take the Patient Care course, usually given during the fall of an Inteflex student's second year, and he was placed on an irregular program. Because of these difficulties, at the July 14, 1976 meeting of the Promotion and Review Board he requested a leave of absence, and when this was approved, he left the program.

During the summer of 1976 while on leave, he took two Physics courses at Point Loma College in California. He reentered the Inteflex program at the University of Michigan in the winter 1977 term. In that term he repeated Chemistry 220 in which he received an A-. In the spring of 1977, he passed the Introduction to the Patient Care course.

In the 1977-78 year, he completed the regular Year II program. But then he encountered new difficulty. In the fall of 1978 he received an incomplete in Clinical Studies 400, which was converted to a Pass; a B in Microbiology 420; and an incomplete in Gross Anatomy 507. The Gross Anatomy incomplete was converted to a C- by a make-up examination. During the winter of 1979 he received a C- in Genetics 505, a C in Microbiology 520, an E in Microanatomy and General Pathology 506, a B in Creative Writing, and a Pass in Clinical Studies 410. He appealed the Microanatomy and General Pathology grade, requesting a change from an E to a D, and a make-up exam to receive a Pass. His appeal was denied by the Grade Appeal Committee, and he was again placed on an irregular program; he took only the Clinical Studies 420 course in the spring 1979 semester.

In July 1979, Ewing submitted a request to the Promotion and Review Board for an irregular program consisting of a course in Pharmacology in the fall and winter 1979-80 and a course in Human Illness and Neuroscience in 1980-81, thus splitting the fourth year into two years. The Board denied this request and directed him to take the fourth year curriculum in one academic year. He undertook to do so. He removed his deficiency in Microanatomy and General Pathology 506 by repeating the course during the winter 1980 semester and received a C+. In the spring term of 1980 he passed Developmental Anatomy with a B- grade, and he received a C grade in Neuroscience I 509 after a reexamination. In the fall of 1980, he received a passing grade in Neuroscience 609 and Pharmacology 626, and in the winter term of 1981, he received a passing grade in Clinical Studies 510 and a deficiency in Pharmacology 627. He was given a make-up examination in this course, and he received a 67.7 grade.

He then took Part I of the NBME (National Board of Medical Examiners) examination. The NBME examination is administered by the Board of Medical Examiners, a proprietary organization which devises tests for licensure. Part I of the NBME examination must be passed before a student in the Medical School can reach the clinical stage of the program. Both regular medical students (known also as standard students) and students in the Inteflex program are required to take Part I of the NBME examination before continuing with clinical studies. Ewing received a score of 235; a score of 345 was required for a passing grade. His 235 score was not only the lowest score in his class, but the lowest score ever recorded by a University of Michigan student in the Part I examination. Because of this, on July 24, 1981, the Promotion and Review Board voted unanimously to drop him from registration in the program, noting that he had been earlier advised that any future deficiency would lead to dismissal.

On August 27, 1981, Ewing appealed the decision of the Promotion and Review Board to the Executive Committee. That Committee, having reviewed the record and having discussed the issues with Ewing and his representatives, Drs. Anderson and Shott, again unanimously affirmed the action of the Promotion and Review Board. It did so by approving a motion to deny Ewing's appeal for a request for a leave of absence status so that he could retake Part I of the NBME examination.

B.

The evidence indicates that since this NBME board program was instituted, thirty-two standard students in the Medical School who failed Part I of the NBME were permitted to retake the test. Of these thirty-two students, ten were allowed to take the test a third time, and one a fourth time. It also appears that seven students in the Inteflex program were allowed to retake the test, and one student was allowed to retake it twice. Ewing is the only student who, having failed the test, was not permitted to retake it.

Dr. Robert E. Reed, a former Director of the Inteflex program, and a member of the Promotion and Review Board, stated that students were routinely given a second chance absent other circumstances. It is because of this claimed disparity between Ewing and other students that Ewing argues that the decision of the defendants is arbitrary and capricious, and thus a violation of his substantive due process rights.

C.

Ewing was born in 1956. He graduated from high school in British Columbia in 1974 and, before entering the Inteflex program in the fall of 1975, he traveled somewhat and was also gainfully employed. In his application to the Inteflex program, he wrote:

I should be considered because of my personal and academic accomplishments which I feel demonstrate my suitability to the study of medicine. ... The academic aspects of medicine are particularly appealing to me. I decided to apply to your integrated pre-medical-medical program because of its unique emphasis on communication skills and the social problems of health care.

Yet, on March 8, 1976, his file reveals that Dr. Reed wrote to the Inteflex counseling staff, saying:

Ewing's record this past fall was deficient enough that he initially came to the attention of the Literary School's Administrative Board, although they accepted his appeal and allowed him to register for the winter term.

Later in 1976, Ewing was advised of the Interim Board's concern with his poor performance. A note in his record on May 7, 1976 states:

The way he has been behaving is viewed as much more alarming than the student is willing to admit to.

Because of this, he was given a leave of absence for the ensuing year. In a letter to the Board concerning this, he writes about the possibility of going to another school that "might be just the thing to rescue me from the throes of academic lethargy."

D.

Earlier I commented on Ewing's academic difficulties. It is significant that it took him three years to complete the first two years of the program. It is also apparent that he had great difficulty in the "hard" science courses. It was directly as a result of having received an E in Microanatomy and General Pathology that he was placed on academic probation. He countered this with a request that he be put on an irregular program so as to lighten the load, and it is noteworthy that the Promotion and Review Board at this stage advised him that he could no longer cope by doing reduced work.

On July 30, 1980, Dr. Reed advised Ewing that because of his poor performance in Neuroscience 509, he had to take a reexamination. Dr. Reed wrote:

The Board was concerned that this may be an indication that the problems that previously led to your irregular schedule and difficulty in completing course work might be returning. The Board wishes to note these

...