Wheeler v. Miller

• Decision Date: 09 March 1999
• Docket Number: No. 98-40412,98-40412
• Citation: 168 F.3d 241
• Parties: 132 Ed. Law Rep. 674 Brent WHEELER, Plaintiff-Appellant, v. Daniel C. MILLER, Dr.; C. Sue McCullough, Dr.; Texas Woman's University, Defendants-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 241

168 F.3d 241

132 Ed. Law Rep. 674

Brent WHEELER, Plaintiff-Appellant, v. Daniel C. MILLER, Dr.; C. Sue McCullough, Dr.; Texas Woman's University, Defendants-Appellees.

No. 98-40412

Summary Calendar.

United States Court of Appeals Fifth Circuit.

March 9, 1999.

Roger W. Turner, Dallas, TX, for Plaintiff-Appellant.

Christopher Norman Johnsen, Austin, TX, for Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of Texas.

Before REAVLEY, BENAVIDES and PARKER, Circuit Judges.

PER CURIAM:

Appellant Brent Wheeler was a graduate student at Texas Woman's University. After failing to obtain a Ph.D. in psychology, he sued the university and two professors, Dan Miller and C. Sue McCullough (collectively TWU), seeking injunctive relief and damages. The district court granted summary judgment in favor of TWU. We affirm.

BACKGROUND

In his live petition ¹ Wheeler claimed that he was falsely accused of cheating, resulting in unfair treatment. Specifically, he claimed that false accusations of cheating resulted to inadequate grades, a punitive remediation plan, denial of participation in an internship program, and his ultimate dismissal from the program. He also complained that TWU never gave him a hearing on the cheating allegations. He alleged that "in contravention of the laws and constitutions of this state and of the United States, the Defendants without any form of due process continued to treat the Plaintiff as if he had cheated and should be subjected to punishment for same." Construing his petition liberally, ² Wheeler asserted claims for violation of his state and federal due process rights, violation of his state and federal equal protection rights, ³ and defamation. ⁴ He sought injunctive relief and damages.

The summary judgment record shows the following. Wheeler sought a Ph.D. in school psychology as a student in TWU's psychology department. He was originally admitted to TWU's master's program in counseling psychology in 1992. While a masters student he took a course in psychological assessment from defendant McCullough. This course is also required for the Ph.D., and included a one-hour "pre-practicum" field experience component, which involves administering tests to subjects. McCullough attested that she observed tapes of Wheeler's field tests and described his administration of the Wechsler Intelligence Scales as one of the worst she had ever observed. Wheeler received a C in the pre-practicum. McCullough attested that Wheeler fell asleep in class, to the point of snoring on one occasion, and that he frequently turned in his assignments late. She also attested that the rules of the course, as stated in the syllabus, prohibited the students from testing a family McCullough attested that if a student's testing protocol had too many errors, the student was supposed to administer and score a new test of a subject. Her graduate assistant had informed her that Wheeler had not followed this requirement but had picked up his protocol and returned it fifteen minutes later with corrections and changes. The assistant expressed concern that an unusually high number of responses supposedly gathered from the test subject were word for word from the sample answers in the back of the testing manual.

member, which is an ethical violation. Wheeler chose to test his brother, and later chose to use his brother when it was his turn to lead a "case staffing" in class, saying that the client was a friend.

Wheeler applied to the Ph.D. program in counseling psychology in 1994 and was turned down. He then successfully applied to the school psychology Ph.D. program. Defendants McCullough and Miller were on the school psychology program committee (SPPC) that admitted Wheeler to the program. The other SPPC member were Drs. Hamilton, Jolly, and Vitro. McCullough voted against Wheeler's admission, expressing concerns about his performance in her class. McCullough admits that at this meeting she expressed concern about Wheeler's commitment to the field of school psychology as well as his "compliance with ethical and professional practice standards." Miller supported his admission, saying that everyone deserved a second chance, and offered to serve as his advisor. The committee voted to admit Wheeler, conditioned on his completion of his master's degree, retaking the psychological assessment pre-practicum, and registering for the introduction to school psychology course. Wheeler took the introduction to school psychology course from McCullough and received an A.

Wheeler offered evidence that another professor in addition to McCullough was concerned that Wheeler had fabricated test results, and that these concerns were discussed among faculty members. Dr. Jolly testified that McCullough's comments to her regarding Wheeler's "ethical problems" were an attempt to influence her opinion. Jolly testified that McCullough also expressed her concerns to Dr. Vitro, and Dr. Miller testified that Vitro was aware that accusations of academic dishonesty had been made against Wheeler, but Vitro himself testified that he was unaware of any rumors of academic dishonesty. Miller testified that discussions linking Wheeler to academic dishonesty occurred "at various stages." In a transcript of a conversation between Wheeler and Miller, ⁵ Miller states that "apparently, there was an accusation ... brought against you that you were going out creating your own protocols, not seeing children, just making up protocols and apparently you were caught doing that and you had a big confrontation with Dr. Jackson about that." McCullough similarly testified that at a meeting Dr. Vitro had discussed "that there had been a problem with Dr. Jackson being concerned that Brent had done the same thing that I thought he had done, that is, that he had copied the answers from the test manual, that there were too many word-for-word responses ... you just don't get that many that are word for word the same when you give it to an actual client...." Wheeler testified that Drs. Miller and Jolly had told him of rumors concerning his academic dishonesty.

The school psychology graduate student handbook provides that any student who receives a C must undergo some form of remediation, and any student who earns two C's may be expelled. After admission to the Ph.D. program, Wheeler took a course from defendant Miller. He received an A in the lecture portion and a B in the connected pre-practicum. In the fall 1994 semester Wheeler received a second graduate level C in a pre-practicum to a course by Dr. Vitro, the department chair. Vitro attested that the C was primarily a result of the inferiority of Wheeler's written logs. Although the student handbook provides for dismissal after a second C, the SPPC decided to place Wheeler in a remediation plan. The SPPC met On April 28, 1995, Wheeler took an oral comprehensive examination before Miller, McCullough, and Vitro. All three failed him. Miller described Wheeler's performance as the worst he has ever seen. Vitro attested that he exercised professional judgment and acted in good faith, as did Miller and McCullough as far as he could tell.

with Wheeler and explained the plan, and also provided a written copy of the plan, which required the completion of certain course work, a comprehensive paper, and an oral exam, to be completed by certain dates. Wheeler was told that he would not be eligible to participate in an internship until the Fall of 1996 at the earliest. Dr. Hamilton, a member of the SPPC, attested that this first remediation plan was based on Wheeler's grades, and involved no discussion of cheating or unethical behavior.

In the Spring of 1995 Vitro gave Wheeler a C in a course due to a poor written exam, his third C in the graduate program. The SPPC met in June of 1995 to discuss Wheeler's status in the program. The committee decided to dismiss Wheeler from the program. McCullough attested that the basis of the decision was Wheeler's academic performance. The committee met with Wheeler a week later and informed him of its decision. However, the school administration advised the committee to reinstate Wheeler. As Miller and Vitro understood the administration's position, the original remediation plan was still in effect and technically did not address the possibility of other academic deficiencies (an additional C and failing the comprehensive exam) occurring after the plan was instituted.

After he was readmitted, Wheeler submitted a degree plan which required the submission of a transcript from the University of North Texas. Wheeler had been allowed to take courses at North Texas as a transfer student. He had received a fourth C in a graduate statistics course. In March of 1996 Wheeler took a second oral comprehensive exam before Dr. Palomares, Rubin, and Hampton. The orals committee was appointed by Dr. Sally Stabb; Wheeler offers no evidence that Stabb was aware of charges of academic dishonesty or was otherwise biased against Wheeler. All committee members failed Wheeler, and agreed his performance was the worst they had ever seen. Further, all three swore that they evaluated Wheeler in good faith and were unaware of any allegations of cheating or unethical conduct. The next day Wheeler signed a document accepting a doctoral internship with the Lewisville I.S.D. On April 2, 1996, Miller wrote the school district, explaining that Wheeler "has not met all of his program requirements to be considered for placement as an intern during the 1996-1997 school year."

After Wheeler failed his second set of orals, Miller drafted a second remediation plan, attesting "that it was based solely on Wheeler's poor academic performance," and that "[t]he SPPC did not consider any allegations of unethical conduct in making their determination of the appropriate scope of remediation." TWU's graduate school catalog provides that "[s]tudents who fail any portion of the comprehensive...