Merrow v. Goldberg, Civ. A. No. 86-193.

• Decision Date: 02 November 1987
• Docket Number: Civ. A. No. 86-193.
• Court: U.S. District Court — District of Vermont
• Parties: James MERROW v. David GOLDBERG, Joseph Mark, W. Boyd Barrick and James Davidson.

672 F. Supp. 766

James MERROW v. David GOLDBERG, Joseph Mark, W. Boyd Barrick and James Davidson.

Civ. A. No. 86-193.

United States District Court, D. Vermont.

November 2, 1987.

William A. Hunter, Tepper & Dardeck, Rutland, Vt., for plaintiff.

Paul K. Sutherland, Sutherland Associates, Inc., Burlington, Vt., for defendants.

OPINION AND ORDER

BILLINGS, District Judge.

Plaintiff in this case claims, pursuant to 42 U.S.C. § 1983, that without due process of law, defendants, officers of Castleton State College ("Castleton"), deprived him of a property interest in educational credits awarded him by Castleton and that defendants breached a contract between plaintiff and Castleton. Plaintiff seeks to have restored to his academic transcript the credits expunged by Castleton. Jurisdiction is based on 28 U.S.C. §§ 1331 and 1343 and the doctrine of pendent jurisdiction.

On July 27, 1987 and continuing on August 17, 1987, the Court heard evidence from which it makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

The plaintiff has, for the past 21 years, been a teacher at the vocational center in the Mount Anthony School in Bennington, Vermont. He is employed by the Southwest Vermont Supervisory Union ("SVSU"). Plaintiff has a Master's degree from Bennington College and one from North Adams State College.

Plaintiff enrolled in continuing education courses sponsored by Castleton State College. He received credits for taking at least 16 courses. None of the credits given plaintiff by Castleton have been used by him in connection with his teacher's certification, nor has plaintiff's salary been affected by the Castleton credits. He is at the top of the pay grade scale based on his Master's degrees. Plaintiff enrolled in the Castleton courses solely for professional and personal enrichment.

Since at least the 1973-1974 academic year, Castleton has sponsored numerous continuing education courses in the Bennington area. Various instructors, including personnel from the SVSU, submited course proposals to Castleton. If a course was approved, it was advertised in a course circular. The instructor, through school district interoffice mail, attempted to secure enrollees in the number required to give the course. Usually, courses were offered during the summer recess or during the fall semester. Courses might consist of class work, research or independent study. Instructors orally advised the enrollees as to the requirements in each course. There were no brochures, outlines or syllabi distributed in connection with the courses.

In 1985, Castleton learned that questions were arising as to whether a number of continuing education courses it sponsored were actually given and whether students purportedly enrolled in the courses actually did any work to obtain credit. In response to these questions, Castleton, aided by counsel, set up a Credit Review Panel ("Panel") consisting of two faculty members and one Castleton administrator to review the courses in question.

Pursuant to a process described below, the Panel was to determine whether each credit in each course in question had been legitimately earned. The question of culpability was not considered by the Panel, which was instructed, in part, as follows:

A student by student, course by course, determination is to be made as to whether credit was earned or not earned. No determination of guilt or lack of guilt, of wrongdoing or lack of wrongdoing, is appropriate.

Defendants' Exhibit F. Upon deciding whether a credit was correctly awarded, the panel was to report its finding to the Academic Dean. Defendant Dr. David Goldberg, Castleton's Director of Continuing Education and Graduate Studies since 1984, was appointed "Principal Investigator" for the panel. Dr. Goldberg was relieved of his duties as Director of Continuing Education and Graduate Studies in October of 1985 to devote full time to the investigation.

On June 23, 1985 Dr. Goldberg first contacted plaintiff concerning doubtful courses. Plaintiff's wife answered the telephone and summoned plaintiff, who told Dr. Goldberg that he had enrolled in and taken Biology 101 and 102 from Neil Cunningham on an independent study basis. Approximately three weeks later, after subsequent telephone calls, plaintiff continued to affirm that he had taken the courses. Plaintiff now states that he was confused as to the dates of the courses and admits that he was out of the country and never took Biology 101 and 102.

In January 1986, as part of Dr. Goldberg's investigation, plaintiff and his then attorney met with Dr. Goldberg and defendants' attorney at the Paradise Restaurant in Bennington. During the meeting, all of the doubtful courses and resulting credits were discussed. Plaintiff was asked about others who had taken the same courses, where the courses met, and the subject matter considered in the courses. At the conclusion of Dr. Goldberg's investigation he reported his findings and recommendations to the Credit Review Panel. His report was based on his discovery of facts concerning the courses and students, as well as his opinion regarding students'—including plaintiff's— credibility. Dr. Goldberg also submitted his file notes to the panel.

In early 1986 Dr. Goldberg met with the panel. Plaintiff was neither invited to nor notified of this meeting. In March, 1986, as a result of their meeting with Dr. Goldberg, the Panel notified plaintiff in writing that they had made a preliminary determination of substantial doubt as to whether the credits awarded plaintiff should remain on plaintiff's transcript. Defendants' exhibit D.

The two-page letter of notification indicated that the Credit Review Panel would hold a hearing to consider all information relevant to plaintiff's case. The letter listed each course as to which plaintiff's credit was in doubt. Plaintiff was asked to attend the hearing and was informed that if he wished to attend without counsel the hearing would be held on April 8, 1986. If plaintiff did wish to have counsel present, he was instructed to call Castleton to so inform the panel in order that the hearing could be rescheduled for a date when Castleton's counsel would be available. Enclosed with the letter were copies of the Credit Review Panel Procedures, Defendants' Exhibit E, and the Credit Review Panel Instructions, Defendants' Exhibit F. At the hearing, information would be presented as to whether the courses had been given, whether plaintiff had participated, and whether plaintiff was entitled to the credits. Plaintiff or his counsel could review the evidence, question the Credit Review Panel, cross-examine any witnesses, and present any information he wished to present. The letter strongly encouraged plaintiff to attend the hearing and stated that if plaintiff did not attend, it would be helpful if he sent the panel a statement and any relevant documentary materials.

Plaintiff replied to the Panel by letter dated March 31, 1986. Defendants' Exhibit U. Plaintiff indicated that he did not plan to attend the hearing or to offer any evidence except what was contained in the letter. He stated that he had earned the credits awarded. Plaintiff forwarded to the Panel five letters from instructors in some of the courses under review. Defendants' Exhibits P, Q, R, S & T. Each letter stated that defendant had taken the instructor's course. Either by his own decision or based upon the advice of counsel, plaintiff did not attend the hearing which was held on April 8, 1986.

At the hearing Dr. Goldberg presented to the Credit Review Panel all of the material that he had assembled and gave his investigative report. Upon conclusion of the hearing the Credit Review Panel went into executive session, discussed the matter, and rendered a final decision. Under date of May 2, 1986 the Panel forwarded its decision to plaintiff. Defendants' Exhibit G. In that communication plaintiff was told that he was entitled to appeal the decision to the Academic Dean by giving the Dean written notice of appeal, including the grounds supporting the appeal. Plaintiff was informed that he could have a hearing on his appeal at which he could be represented by counsel.

On May 7, 1986 plaintiff wrote to the Academic Dean indicating that he wished to appeal the decision. Defendants' Exhibit H. He stated that he relied on his earlier correspondence with Castleton and maintained that he was entitled to all credits. He indicated that he would not appear to appeal the decision and he did not so appear.

Subsequent to plaintiff's letter, in late summer of 1986, the Academic Dean reviewed the decision of the panel in plaintiff's case to determine whether the decision was reasonable and based upon substantial evidence. Upon review of the entire file and the transcript of the Panel's hearing, the Academic Dean sustained the Panel's decision.

The Academic Dean notified plaintiff and the Registrar of his decision. Defendants' Exhibits I and J. Plaintiff's academic record was modified by expunging or reducing credits in accordance with the Credit Review Panel's decision as affirmed.

In plaintiff's case, 11 courses came under review. As a result of the panel's review process, 27 credits were expunged from plaintiff's transcript. In all but two courses, all of plaintiff's credits were expunged; in the remaining two, the credits earned were reduced from three to one.

Plaintiff received credit for Biology 101 and 102 in 1980. When contacted by Dr. Goldberg by telephone in the summer of 1985, plaintiff initially indicated that he took the courses either by attending class or on an independent study basis. Subsequently, however, plaintiff did not contest the fact that he never took the courses or did any work in connection with them. Plaintiff conceded that he was not entitled to credit, stating that at the time the courses were supposed to have been given he was in England and France.

Plaintiff does acknowledge that he...